11. D.A.’s POWER TO STRIKE PRIOR AFTER THE ALLEGATION IS FOUND TRUE
a. People v. McDaniel (1996) 44 Cal.App.4th 1590. (DEPUBLISHED.) Relying on McKee, supra, found that the prosecution does not have the power to strike a prior once it is proven, pursuant to section 667, subdivision (f)(2).Given the fact the prior is no longer an “allegation” once it has been proven or admitted by appellant, it cannot be stricken. Therefore, if you are in the trial court, work this out prior to the plea or trial on the prior(s).
12. VAGUENESS:
a. People v. Hill (1995) 37 Cal.App.4th 220. The Third District follows its opinion in Sipe, supra, to the vagueness challenge.
c. People v. People v. Stofle
(1996) 45 Cal.App.4th 417People v. Gray
(1998) 66 Cal.App.4th 973Hill (1995) 37 Cal.App.4th 220.The Third District, at the defendant’s request, took Judicial Notice of “the report of the Senate Committee on the Judiciary,” but rejected the request as it pertains to newspaper articles, and a preliminary assessment of the “three-strikes” law, finding the newspaper articles not judicially noticeable (see Mangini v. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1065), and the legislative analyst’s assessment, irrelevant. They also rejected the prosecution’s request for judicial notice as it pertains to the ballot pamphlet, even though ballot arguments have been considered pertaining to voter’s intent (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 16), here as to the legislative enactment, the voter’s intent was not in issue.
14. PLEA BARGAIN ISSUES (SEE ALSO 1385 ISSUES):
a. People v. Gore (1995) 37 Cal.App.4th 1009. (TRANSFERRED BACK TO THE COURT OF APPEAL AND NOT RECERTIFIED FOR PUBLICATION.) [It is unclear whether the court granted review on any issue other than the court’s power to strike a prior.] Prohibits the use of plea bargaining to strike a serious felony prior. Here, the trial court agreed to strike a robbery prior, leaving appellant with one remaining serious felony, if appellant would plead guilty to the possession of .18 grams of a controlled substance, which he did. This is probably a violation of the prohibition against plea bargaining; but if the court had merely agreed to take the plea and indicated that it would strike a prior pursuant to section 1385, then it is arguably an “indicated sentence” that is not prohibited. Therefore, watch for the distinction between “plea bargaining” and “indicated sentences.” (See People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261; People v. Vergara (1991) 230 Cal.App.3d 1564, 1587; People v. Arauz (1992) 5 Cal.App.4th 663; see also People v. Orin (1975) 13 Cal.3d 937, 943.)
b. People v. Williams (1995) 40 Cal.App.4th 429, DEPUBLISHED. OBVIOUSLY THE SUPREME COURT AGREED WITH ME AND DEPUBLISHED THIS OPINION THAT TRIED TO DISTINGUISH RAMOS. The Fourth District Division 1, found that the “sentence bargain” was a violation of the “plea bargain” prohibition of section 667, subdivision (g). This falls within the dictates of People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261. Appellant pleaded straight up to all of the allegations and then, at the time of sentence, the court struck the 2-strike allegation.
c. People v. Torres DEPUBLISHED (1996) 45 Cal.App.4th 640, held that the court violated subdivision (g), prohibiting plea bargains, when it indicated that it would treat a plea to Health and Safety Code section 11377, subdivision (a) (e.g., a wobbler), as a misdemeanor, if appellant plead guilty to the charges. Appellant admitted the possession offense, but refused to admit the two serious felony priors. The court did not strike the priors, nor did the prosecution move to dismiss them in the interest of justice; they just remained unresolved as the court took the plea on the underlying offense.
The Court of Appeal found that the trial court had the right to reduce the matter to a misdemeanor, but that since pursuant to sections 1025 and 1158, the admission to the priors could be used in subsequent proceedings, (see People v. Sanchez (1991) 230 Cal.App.3d 768, 773), the court’s failure to permit the prosecution to proceed on the prior allegations, without requiring the defendant to admit those allegations, conferred a “reciprocal benefit” on the defendant in return for his plea, thereby making it an improper plea bargain.
The Court of Appeal did indicate that on remand, that the trial court could impose the misdemeanor sentence even if appellant chose to admit the priors or if the prosecution proved them in a separate hearing. The court also noted that the prosecution had the right to move to dismiss the priors pursuant to section 1385, subdivision (a).
d. People v. Couch (1996) 48 Cal.App.4th 1053, the Sixth Appellate District, held that, if a defendant agrees to a specified period of time pursuant to a plea bargain, he cannot later challenge the sentence, albeit the strike portions of the sentence, given the fact that he received a benefit from the bargain. The only exception to this rule would be if appellant were to challenge the court’s fundamental jurisdiction, which he was not challenging in this case. The court even reaches this conclusion without citing People v. Panizzon (1996) 13 Cal.4th 68.
e. People v. Cole (2001) 88 Cal.App.4th 850, the Second Appellate District, Division 5, held that a defendant who entered a negotiated plea for a maximum of 25 to life on a Three Strikes case, where in the court agreed that it would consider striking strikes, needed a certificate of probable cause to raise the issue that he was “manifestly influenced” by the promise to consider striking one or more strikes, and (2) that his sentence violated cruel and unusual punishment. The court did find that the defendant could raise the issue of whether the court erred in failing to strike a strike, without the issuance of a certificate of probable cause as it did not attack the validity of the plea. Finally, the court found that based on California Rules of Court 4.412(b), the defendant was precluded from challenging whether a concurrent count should have been sentenced pursuant to section 654.
15. CRUEL AND/OR UNUSUAL ARGUMENTS:
a. People v. Gore formerly at (1995) 37 Cal.App.4th 1009. THE MATTER WAS TRANSFERRED BACK TO THE COURT OF APPEAL AND NOT CERTIFIED FOR PUBLICATION THEREAFTER. Second District Division 7, rejected the CRUEL OR UNUSUAL ARGUMENT. It references People v. Karsai (1982) 131 Cal.App.3d 224 and Rummel v. Estelle (1980) 445 U.S. 263, 284-285, which discuss the proper punishment for recidivists. A close reading of Estelle leads into the argument that punishment for recidivist conduct should only occur after appellant has been sent to state prison multiple times for separate offenses, not merely sent to the joint one time for separate offenses.
b. People v. Campos formerly at (1995) 38 Cal.App.4th 1669. THE MATTER WAS TRANSFERRED BACK TO THE COURT OF APPEAL AND NOT CERTIFIED FOR PUBLICATION THEREAFTER. Justice Wood’s rejected the CRUEL AND/OR UNUSUAL argument for Mr. Campos who was found to have taken a container of Clearasil and hair rollers without paying for them. Justice Johnson notes in his dissent, that there was a violation of the California Constitution, and that the court has the power, and the duty, to refrain from imposing an unconstitutional sentence. (See footnote 17.) Justice Johnson reaffirms the concept that it is the maximum sentence that must be reviewed for its constitutionality, citing Lynch. He also notes that a defendant’s past offenses are certainly a relevant consideration in determining whether there is constitutional error, but finds that they do not result in a pro tanto repeal of the cruel or unusual punishment clause. Finally, of significance, Justice Johnson notes that some 40 states have something akin to a three-strikes law, but that in only two other states, Washington and West Virginia, can the third strike be any felony. Additionally, he holds that had Rummell v. Estelle (1980) 445 U.S. 263, been subject to the Lynch/Dillion proportionality review, it to, along with the sentence in Solem v. Helm, would have been found unconstitutional. Given the fact that Rummell was not subject to proportionality review, Justice Johnson finds it easily distinguishable. Use the cases cited by Justice Johnson in his dissent now that the matter has been depublished.
c. People v. Patton formerly at (1995) 40 Cal.App.4th 413. THE MATTER WAS TRANSFERRED BACK TO THE COURT OF APPEAL AND NOT CERTIFIED FOR PUBLICATION THEREAFTER. The Fourth District, Division 1, followed Romero. The trial court had struck one of the priors based on the fact that it would be cruel and unusual punishment to sentence appellant, who was 23 years of age, with no violence in his background (e.g., 2 prior residential burglaries) to a three strike sentence. The prosecution objected, and the appellate court found that the trial court issued an unauthorized sentence, thereby imposing a sentence of 25 years to life, rather than the 2-strike sentence which had been imposed by the trial court. (See People v. Weddle (1991) 1 Cal.App.4th 1190, 1197.)The court rejected the argument based on both the federal and California Constitutions.
d. People v. Williams (1995) 40 Cal.App.4th 446, Division 7 of the Second District Court of Appeal, found that appellant’s sentence for life without the possibility of parole was not cruel and/or unusual punishment for the intentional killing of two persons. The court also found that the three strikes provisions did not eliminate the special circumstance allegations.
e. People v. McDaniel (1996) 44 Cal.App.4th 1590. DEPUBLISHED.
i. People v. Kelley (1997) 52 Cal.App.4th 568, Fourth Appellate District, Division 3, ruled that appellant’s nine year sentence for stalking, did not violate either the state or federal prohibitions against cruel and/or unusual punishment. Additionally, the court noted that since the issue was not raised in the trial court, it is waived. (See People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) I question whether a constitutional issue of this nature can be waived, but that is for another time, since they determined that even if it had, there would be no violation.
k. People v. Lopez DEPUBLISHED; REVIEW DISMISSED; FORMERLY (1997) 60 Cal.App.4th 275, the Sixth Appellate District held that two separate drug transactions, by the same defendant, on two separate days, are not within the meaning of the same set of operative facts, pursuant to section 667, subdivision (c)(6). The Court of Appeal also found that 2 consecutive terms of 25 to life for these two drug sales, when the defendant had three prior serious felony convictions, did not violate the prohibition against cruel and unusual punishment.
l. People v. Metters (1998) 61Cal.App.4th 1489, the First Appellate District, Division 2, held that a 35 to life sentence for a defendant convicted of robbery and who had priors since the age of 17 for various drug offenses, was not “grossly disproportionate” to the crime, given appellant’s recidivist status. Additionally, the sentence did not “shock the conscience or violate notions of human dignity” and therefore did not constitute a cruel and unusual sentence. (See People v. Ayon (1996) 46 Cal.App.4th 385, 399-400.)
m. People v. United States v. Bajakajian
(1998) 524 U.S. 321, [141 L.Ed.2d 314, 118 S.Ct. 2028]Gray (1998) 66 Cal.App.4th 973, the First District, Division 5, held that there was no cruel and unusual violation when the defendant was convicted of attempted carjacking and attempted kidnaping, wherein the court imposed a 25 years to life three strike sentence. The usual arguments were presented by both sides.
p. Riggs v. California (1999) 525 U.S. 1114, [142 L.Ed.2d 789, 119 S.Ct. 840], the High Court denied certiorari on this cruel and unusual claim, but 4 justices penned some interesting language that can possibly be used in arguments in that the sentence for stealing a bottle of vitamins was “grossly disproportionate.” Justice Stevens wrote: “This pro se petition for certiorari raises a serious question concerning the application of California’s ‘three strikes’ law…to petty offenses.” Justice Stevens continued, “This question is obviously substantial, particularly since California appears to be the only State in which a misdemeanor could receive such a severe sentence. (Citation.) While this Court has traditionally accorded to state legislatures considerable (but not unlimited) deference to determine the length of sentences ‘for crimes conceitedly classified and classifiable as felonies (citation), petty theft does not appear to fall into that category. Furthermore petty theft has many characteristics in common with the crime for which we invalidated a life sentence in Solem, uttering a ‘no account’ check for $100…” However, Justice Stevens indicated that he did not vote to grant the writ since neither a lower federal court, nor the California Supreme Court has yet to review the issue. Conceding that recidivists can be punished more severely, as a stiffened penalty for the current offense and not a penalty for the earlier crimes (see Witte v. United States (1995) 515 U.S. 389, 400), questions are raised as to how the defendant’s strikes, eight in all, affects the constitutionality of his sentence, “especially when the State ‘double counts’ the defendant’s recidivism in the course of imposing that punishment. (Citations.)” Use some of this language in your AOBs and petitions for review.
q. People v. Stone (1999) 75 Cal.App.4th 707, the Second Appellate District, Division 4, held that it was not cruel and unusual punishment to sentence the defendant to 25 to life based on his current offense of manufacturing a precursor of PCP, and with a prior record which included many serious and violent offenses, and which span a 15 year period, wherein the defendant served 4 prior prison terms.
u. Durden v. California (2001) 148 U.S. 1027 [121 S.Ct. 1183], Justice Souter, joined by Justice Breyer, dissented from the denial of certiorari, indicating that it has been 2 years since Riggs v. California (1999) 525 U.S. 1114, [142 L.Ed.2d 789, 119 S.Ct. 840], and neither the California Supreme Court, nor a Federal District Court has taken up the issue. Furthermore, given the fact that there is potential for disagreement over the application of the habeas corpus review standard of Teague v. Lane (1989) 489 U.S. 288, and the Antiterrorism and Effective Death Penalty Act of 1996, and the uncontroverted representation of petitioner’s counsel that some 319 California prisoners are now serving sentences fo 25 years to life for what would otherwise be a misdemeanor theft under the California scheme, these justices would wait no longer to decide the issue, as the “stakes are substantial.” Therefore, I would add this citation and argument to the cruel and unusual punishment arguments when citing Riggs.
v. People v. Cuevas (2001) 89 Cal.App.4th 689, the First Appellate District, Division 3, held that, based on the defendant’s prior history of criminal conduct, which made him a “Three-Striker”, qualified him for an 85 year to life sentence, based on the three current convictions for bank robbery, where no violence was used. The court went into an extensive analysis of prong 1 of the 3-prong test set forth in In re Lynch (1972) 8 Cal.3d 410, finding that this 32 years old, who had been using heroin since 9 years old, and with a record beginning in 1984, without any appreciable break in his time in custody, the sentence was not disproportionate to the crimes charged as it cannot be stated that the robberies were neither nonviolent nor victimless.
w. People v. Byrd (2001) 89 Cal.App.4th 1373, the Third Appellate District held that a defendant who was convicted of 12 counts of robbery, mayhem, premeditated murder, and an enhancement within the meaning of section 12022.53, subdivision (d), and who was a “three striker”, wherein the trial court imposed a sentence of 115 determinate years and 444 indeterminate years to life, said sentence was not cruel and unusual even though he could never live out its term. The Court of Appeal disagreed with Justice Mosk’s concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, wherein he penned that it would be cruel and unusual punishment to sentence a defendant to a sentence that he could not serve out.
x. Brown v. Mayle (2002) 283 F.3d 1019, the Ninth Circuit Court of Appeal held that, based on the particular facts of these cases, a sentence of 25 to life for a petty theft offense, is cruel and unusual punishment. The Court of Appeal held that the California Court of Appeal did not follow clearly established United States Supreme Court law in Rummel v. Estelle (1980) 415 U.S. 263; Solem v. Helm (1983) 463 U.S. 277; and Harmelin v. Michigan (1991) 501 U.S. 957. The Court of Appeal found that even though defendants Brown and Bray had violent criminal priors, and Andrade did not, the cases cannot be distinguished based on the gross disproportionality to the current offense. Additionally, this court left open the question of whether the holding applies to other non-violent offenses, other than petty theft with a prior, where the “double counting” of the prior is not a significant element considered in its ruling. That question may now be answered in Ewing v. California, supra.
y. People v. Mantanez (2002) 98 Cal.App.4th 354, the Fourth Appellate District, Division 1 held that, appellant’s sentence of 25 to life, plus three determinate years for possession of .25 grams of heroin, and receiving stolen property and prior prison terms, was not cruel and unusual punishment. The Court of Appeal held that primarily based it opinion on Rummel v. Estelle (1980) 415 U.S. 263 and Harmelin v. Michigan (1991) 501 U.S. 957, discounting Solem v. Helm (1983) 463 U.S. 277 and its holding on gross proportionality as essentially being overruled by Harmelin. However, the Court of Appeal never discussed United States v. Bajakajian (1998) 524 U.S. 321, [141 L.Ed.2d 314, 118 S.Ct. 2028] and its basic reaffirmance of the gross proportionality standard set forth in Solem. The Court of Appeal also went on to “respectfully” disagree with the Ninth Circuit Opinions in Andrade v. California Attorney General (2001) 270 F.3d 743, and Brown v. Mayle (2002) 283 F.3d 1019, and declined to follow them.
z. People v. Romero (2002) 99 Cal.App.4th 1418, the Fourth Appellate District, Division 2, held that the trial court did not abuse its discretion in failing to strike a strike, or in failing to follow Andrade v. California Attorney General (2001) 270 F.3d 743, and Brown v. Mayle (2002) 283 F.3d 1019, in sentencing the defendant to 25 to life, for the theft of a $3.00 magazine, and the possession of a smoking devise. The jury hung on the charge of possession of a controlled substance. The court found that based on the defendant’s recidivism, which included two prior strikes, ranging back to age 19, and his numerous parole violations, that he fell within the intent of the three-strikes law, and that a sentence of 25 to life, is not per se, cruel and unusual punishment for a conviction for petty theft under current United States Supreme Court precedent.
aa. People v. Meeks (2004) 117 Cal.App.4th 891, the Third Appellate District held, over a strong dissent, that the Three Strike sentence of 25 years to life for failing to register after change of address did not constitute cruel and/or unusual punishment under the U.S. Constitution or California Constitution given the seriousness of the crime and the defendant’s prior criminal history. (Ewing v. California (2003) 538 U.S. 11, [155 L.Ed.2d 108, 123 S.Ct. 1179].) The dissent points out that appellant had led a crime free life for 9 years, that most of his “sexual history” occurred 23 years prior, and it is “pathetic” to sentence appellant to life for failing to register on his birthday when he is undisputedly dying of AIDS.
bb. People v. Carmony (2005) 127 Cal.App.4th 1066, the Third Appellate District held that a violation of section 290, for the failure to “update” sex offender registration within five working days of offender’s birthday, where defendant had registered his correct address one month before his birthday and the parole agent knew that the defendant continued to reside at that address, was an offense so minor that there would be a violation of the prohibition against cruel and/or unusual punishment provisions of the United States and California constitutions, if a three-strike sentence was imposed. The majority of the court, in this 2-1 opinion, does an extensive analysis of the intrajurisdictional and interjurisdictional comparisons for both the state and federal standard, and the majority found that the sentence is clearly disproportionate by any measure. (Cf. People v. Cluff (2001) 87 Cal.App.4th 991, 1004.)
16. URGENCY LEGISLATION ARGUMENTS:
a. People v. Kinsey (1995) 40 Cal.App.4th 1627, the Second District, Division 7, in another Fred Wood’s opinion, concurs with the holding in Cartwright, that the statute does not violate the provisions pertaining to urgency legislation.
d. People v. Williams (1996) 49 Cal.App.4th 1632, the Sixth Appellate District held that the statute does not violate the urgency legislation provisions.
17. PROVING PRIORS AT PRELIMINARY HEARING:
a. Miranda v. Superior Court (1995) 38 Cal.App.4th 902. In this matter, Second District Division 2, found that the prosecution did not have to prove the priors at the time of the preliminary hearing. The court makes the distinction between sentencing enhancing statutes where the prior must be proven at the preliminary hearing, and sentencing factor statutes where the prior does not have to be proven before being filed in the superior court. The court found that there is nothing in the statute which indicates “when” the prosecution had to prove the strike prior. Where does it say in any other statute, such as the ones analyzed in People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 757, or Ghent v. Superior Court (1979) 90 Cal.App.3d 944, that the statute has to say when the prior must be proven; they don’t.
b. People v. Superior Court (Arevalos) (1996) 41 Cal.App.4th 908, Fourth District Division One, reaffirms Miranda v. Superior Court, supra, 38 Cal.App.4th 902, that the people do not have to prove the priors at the preliminary hearing.
c. Thompson v. Superior Court (2001) 91 Cal.App.4th 144, the Second Appellate District, Division 3, held that a strike prior does not have to be proven at the preliminary hearing (see Miranda v. Superior Court (1995) 38 Cal.App.4th 902; People v. Superior Court (Arevalos) (1996) 41 Cal.App.4th 908), and that Apprendi v. New Jersey (2000) 530 U.S. 466, does not change that result since prior convictions are exempted from the rule that the elements of an offense must be proven beyond a reasonable doubt, even at a preliminary hearing. (See § 871.) The Court of Appeal also found that public policy would not be furthered by requiring proof of the priors at the preliminary hearing, or that the failure to prove the strike priors before trial denied appellant equal protection. Appellant had argued that since the prosecution must prove prior convictions to elevate a misdemeanor to a felony (e.g. §§ 666 and 314), then they must prove the strikes to get the increased penalty in the superior court.
18. BROUGHT AND TRIED SEPARATELY/RECIDIVIST ARGUMENTS:
a. People v. Allison (1995) 41 Cal.App.4th 841, First District, Division One found that since the statute does not specifically provide that where prior are “brought and tried together”, as it does in section 667, subdivision (a), then the legislature did not intend for the provision to apply. They indicate that if they so intended they would have said so.
b. People v. Superior Court (Arevalos) (1996) 41 Cal.App.4th 908, Fourth District Division One, held (1) that the section 667, subdivisions (b) to (I) is without ambiguity, (2) contains no provision that prior convictions must be brought and tried separately, (3) that section 667, subdivision (d), (which merely defines what type of felony that qualifies as a prior, and not how many priors qualify), somehow defeats the contention and (4) that subdivision (c)(6), pertaining to “current convictions” (and not the priors in question), defeats the trial court’s ruling that the charges must be brought and tried separately for the defendant to be subject to more than one strike. The court, without specifically addressing our harmonizing argument or other specific arguments advanced in the current briefing, find that the use of multiple priors from a single charging document will insure longer sentences, and as a result, that is what the legislature must have meant to do. Remember, People v. Baker (1985) 169 Cal.App.3d 58, (which indicated that “brought and tried separately” is not applicable to § 667.6, [recidivist statute for violent sex crimes]) is distinguishable as that section is (1) another separate statutory scheme, it was not engrafted onto section 667, as was the “strike” legislation, and (2) its (e.g., § 667.6) purpose was only to punish repeat sex offenders.
c. People v. Purata (1996) 42 Cal.App.4th 489, Second District, Division 4, found that the “least adjudicated elements” test is used to determine whether an out of state prior is one which qualifies as a serious felony and a strike in California. However, as in People v. Myers (1993) 5 Cal.4th 1193, 1195, the court can look beyond the least adjudicated elements test and consider the evidence found within the entire record of the foreign conviction, if not precluded by the rules of evidence or other statutory limitations.
b. People v. Hunt (1999) 74 Cal.App.4th 939, the Third Appellate District held that, for purposes of the violent sexual predator statute, the phrase “a conviction in another state” did not encompass a military court martial in Germany for a violation of section 288, subdivision (a). If a conviction in another “jurisdiction” other than another state is presented by the prosecution to establish a prior serious or violent felony, I would use this case to refute that allegation.
c. People v. Stewart (2000) 77 Cal.App.4th 785, NOT PUBLISHED ON THIS ISSUE, BUT THE RATIONALE STILL APPLIES. The Fourth Appellate District, Division 1, held that one Florida conviction was properly admitted for strike purposes and that the guilty plea could be shown by the use of the preliminary hearing, and the averments in the charging document, which alleged that the defendant used a weapon in the commission of the offense. However, the Court of Appeal did hold that certain statements in an affidavit which formed the basis for probable cause to bind over the defendant for trial on another prior were improperly admitted within the meaning of People v. Reed (1996) 13 Cal.4th 217, 224.) The document contained multiple hearsay and should not have been admitted.
d. People v. Zangari (2001) 89 Cal.App.4th 1436, the First Appellate District, Division 4 held that a defendant’s prior convictions for burglary in Oregon are strikes in California, based on the information, the plea of guilty, the amended judgement and order. The Court of Appeal analyzed the least adjudicated elements of the Oregon statute, which has different intent elements, and found, contra to People v. Marquez (1993) 16 Cal.App.4th 115, 123, that the subject purpose to deprive the owner of their property was sufficiently similar as to constitute a strike in California.
e. People v. Morgan DEPUBLISHED (2001) 91 Cal.App.4th 1324, the Third Appellate District held that counsel provided ineffective assistance when he failed to research an Arkansas statute to determine if the elements of that statute at least met the least adjudicated elements test. (See People v. Guerrero (1988) 44 Cal.3d 343; People v. Myers (1993) 5 Cal.4th 1193, 1200.) In this case, the least adjudicated elements test was applicable in the absence of an underlying record, where, had the record existed, the entire record of conviction is used to determine the substance of the foreign conviction. Here, appellant had been found guilty of kidnapping in Arkansas some thirty years ago. The court relied on “some criptic” probation report that cited no provisions of the Arkansas code. Defendant admitted as strikes, two convictions of an Arkansas Criminal Code that were not even in existence at the time of his convictions. The foreign statute applicable is the one in existence at the time of the offense. The Arkansas statute that was compared lacked the asportation and intent requirements and defined what could be considered an aggravated false imprisonment. The Court of Appeal concluded by stating, “But when, as here, ‘the knowledge necessary to an informed tactical or strategic decision is absent because of counsel’s ineptitude or lack of industry, no such ground of justification is possible.'” (In re Williams (1969) 1 Cal.3d 168, 177.) Finding that counsel did not investigate the critical facts of the priors to advise his client whether to admit the priors undermined the confidence in the outcome of the plea bargain, and as a result, the judgment and sentence were vacated. AS A RESULT, THIS IS THE WARNING TO REVIEW ALL PRIORS BEFORE ADVISING THE CLIENT HOW TO PROCEED WITH THEM.
f. People v. Fox (2001) 93 Cal.App.4th 394, the Fifth Appellate District held, consistent with People v. Murphy (2001) 25 Cal.4th 136, that a conviction in Oregon, for having sex with a minor under 14, qualifies as a strike, since the conduct qualifies as a lewd and lascivious act on a child under 14, which is a serious felony within the meaning of section 1192.7, subdivision (c)(6).Murphy held that to qualify as a serious felony within subdivision (c)(6), the act need not contain a specific intent, and that the Oregon statute does not mandate a specific sexual intent; therefore, the Oregon prior qualifies as a strike.
g. People v. Mumm (2002) 98 Cal.App.4th 812, the Fourth Appellate District, Division 1, held that, within the ruling in People v. Avery (2002) 27 Cal.4th 53, wherein a Texas conviction for burglary with the intent to commit theft, was held to come within the California statute, when the High Court modified the intent to steal requirement, by holding that: the intent requirement is satisfied when the defendant intends to deprive the owner of property only temporarily, but for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment. (Id., at p. 56.) As a result of the foregoing, the Court of Appeal found that the intent requirements were the satisfied, even though they were the same but different. Got that.
h. People v. Rodriguez (2004) 122 Cal.App.4th 121, the Second Appellate District, Division 5, held that there was insufficient evidence that the defendant was convicted of a “robbery” under Texas law as the elements did not match those in California and did not establish that offense was a serious or violent felony for purposes of Three Strikes Law, since Texas law did not require either asportation or the taking of property from the person or his or her immediate presence, both of which are elements of robbery. Additionally, the prior conviction for “burglary of a habitation” under Texas law did not qualify as a “strike” in light of a subsequent Texas decision holding that the structure need not be occupied or currently used as a dwelling, an element of first degree burglary in California, for it to be a “habitation.” Where the trial court erred in holding that evidence was sufficient to establish that the Texas convictions were “strikes,” the prosecution is entitled to present additional evidence on remand pursuant to People v. Monge (1997) 16 Cal.4th 826, 845.
20. DUE PROCESS/EQUAL PROTECTION AND ASCENDING/DESCENDING RECIDIVISM
a. People v. Kilborn (1996) 41 Cal.App.4th 1325, Second District, Division 4, held wherein a defendant commits a non-serious felony after committing a serious felony, does not violate either the provisions of the due process or equal protection clauses, even though appellant would not be subject to the provisions of section 667, subdivision (e), if the acts had been committed in reverse order. The court found that the legislative purpose — to punish recidivist criminals who have committed serious or violent crimes more severely – was a proper goal – even if the subsequent felony was not serious or violent. Finding a rationale basis for the statute, the court upheld it against the due process challenge. As against the equal protection challenge, the court found that recidivists who commit serious or violent crime are not in the same category as other criminals and therefore, they can be treated differently.
b. People v. Edwards
(2002) 97 Cal.App.4th 161Ruiz (1996) 44 Cal.App.4th 1653, the Fifth District held that, pursuant to People v. Jenkins (1995) 10 Cal.4th 234, that the legislature can amend an initiative, and in so doing, the three strikes sentencing scheme applies over “section 667.7 ‘or some other sentencing statute.'” Therefore, the court rejected defendant’s claim that he should have been sentenced under section 190 rather than the three strikes law for his murder with a strike prior.
b. People v. Espinoza (1997) 58 Cal.App.4th 248, Second Appellate District, Division 4, held that, the three strikes law supercedes the specific provisions in section 664. The court rejected appellant’s contention that the court retained the discretion to sentence under section 664, and not the three strikes law, as section 664 was the “special” statute, which controlled over the “general” 3-strikes statute. The “special over general” rule applies when each element of the general statute corresponds to an element of the special statute, or when a violation of the special statute will necessarily result in a violation of the general. (See People v. Coronado (1995) 12 Cal.4th 145, 154.) Here, the elements do not correspond, and neither Romero nor Alvarez mandate a different result. When a prior serious felony is properly pled and proven the three strike law must be given effect if it would result in a more severe sentence. (People v. Ervin (1996) 50 Cal.App.4th 259.) A defendant is not entitled to the benefit of a shorter sentence under some other sentencing scheme. (People v. Fuhrman (1997) 16 Cal.4th 930.)
25. DOUBLE JEOPARDY ISSUES
a. People v. Torres (1996) 45 Cal.App.4th 640, the Fourth District, Division Two, held that there is no double jeopardy violation when an enhancement is not (1) submitted to the court for determination of it truth, nor (2)when the prosecution is not given the opportunity to prove the enhancements, nor (3) when the defendant is not mandated to either admit or face charges on enhancements that have not be dismissed on the motion of either the court or the prosecution. The Court of Appeal distinguished the line of cases that found that a court’s failure to make a finding on the prior conviction allegation operates as an acquittal (see People v. Eppinger (1895) 109 Cal. 294, 298; People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440; People v. Garcia (1970) 4 Cal.App.3d 904, 907, fn.2), given the fact that the cause of the prior was never submitted to the court for decision. The court analogized to the Supreme Court’s holding in People v. Saunders (1993) 5 Cal.4th 580, 595, where they found that double jeopardy did not bar a retrial after the jury had been dismissed without the priors trial going forward. (See also People v. Bryant (1992) 10 Cal.App.4th 1584, 1597; People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1235-1236.)
b. People v. Walker (1996) 45 Cal.App.4th 1326, the First District, Division Five, held that pursuant to the rationale of Burks v. United States (1978) 437 U.S. 1, 11, retrial on an prior conviction enhancement, wherein the court found the proof to be insufficient, could not be retried. Given the fact that there was insufficient proof of recidivism, the matter is precluded from being retried based on a similar rationale as stated by Justice Kaus in People v. Bonner (1979) 97 Cal.App.3d 573, 575.) IS THIS CASE CHANGED BY MONGE v. CALIFORNIA (1998) 524 U.S. 721, [141 L.Ed2d 615, 118 S.Ct. 2246]?
26. WHAT DOCUMENTS OR RECORDS CAN BE USED TO DETERMINE WHETHER A PRIOR IS A SERIOUS FELONY OR STRIKE PRIOR
a. People v. Lewis (1996) 44 Cal.App.4th 845, one panel of Fourth District, Division One has held that the trial court erred when it relied on a document prepared after judgment, which, by definition is not “part of the record leading to imposition of judgment.” (See People v. Myers (1993) 5 Cal.4th 1193, 1195.) Any document relied upon to support a prior conviction, must be “a part of the record of conviction.” (Ibid.) A document leading to the imposition of judgment can be used to determine whether a prior is a serious felony within the meaning of section 1192.7, subdivision (c).
Additionally, hearsay is not admissible to prove a prior serious felony. A defendant’s statement in a probation report is admissible as it falls within a hearsay exception. But a statement in a probation report made by other persons is hearsay and not admissible. Even though a document appears to be a public record, the facts contained therein are hearsay and no exception applies, especially where there is no information contained in the report to establish the documents trustworthiness or reliability.
Charging documents and clerk’s minute orders are admissible, (See People v. Smith (1988) 206 Cal.App.3th 340, 345), they do not necessarily tend to show appellant committed the act within section 1192.7.
b. People v. Shoal (1997) 53 Cal.App.4th 911, Third Appellate District ruled that a reporter’s transcript of a plea is part of the “record of conviction.” As a result, the court could look to the transcript to determine whether any fact established a person use of a deadly weapon or whether the assault was committed only “by means of force likely to produce great bodily injury”, which would not quality as a serious felony. Also note that the prosecution has the burden of proving each element of the prior.
c. People v. Best (1997) 56 Cal.App.4th 41, Third Appellate District, ruled that the transcript from a Proposition 115 preliminary hearing cannot be used to prove a prior conviction is a serious felony when a hearsay objection is made before its introduction. The Court of Appeal found that the prosecution established that the defendant was convicted of an assault with a deadly weapon based on the information, the change of plea form, and the sentencing transcript, but the nature of the assault, the personal use of the deadly weapon could not be shown by the preliminary hearing transcript as no exception to the hearsay rule would allow its admission. The officer who testified never personally new that the defendant used the weapon in the course of the assault, the officer’s testimony at the preliminary hearing was based solely upon the statement of the victim who did not testify at any hearing.
d. People v. Houck (1998) 66 Cal.App.4th 350, the Fourth District, Division 1, held that a preliminary hearing transcript cannot be used to prove that the prior conviction was a serious felony, when the conviction resulted from a trial and not a plea following the preliminary hearing. The Court of Appeal finds that the preliminary hearing transcript is not part of the “record of conviction” (see People v. Woodell (1998) 17 Cal.4th 448j, 454; People v. Reed (1996) 13 Cal.4th 217, 223), even though the “entire record” may be used to determine if the prior qualifies as a serious felony. (See People v. Myers (1993) 5 Cal.4th 1193, 1195.)People v. Bartow (1996) 46 Cal.App.4th 1573, has taken the opposite position and held that the preliminary hearing transcript is part of the record of conviction. Reed, supra, stated, within the context of a plea, that the preliminary hearing transcript was part of the record of conviction when determining if an assault with a deadly weapon was a serious felony prior. However, when there was a trial on the alleged charges, the jury finding is the reliable evidence the trier of fact must consider in determining if the prior is a serious felony and not the preliminary hearing transcript. This is the application of the “reliable reflection” test from Reed. But retrial is not barred pursuant to Monge v. California (1998) 524 U.S. 721 [141 L.Ed.2d 615, 118 S.Ct.2246].
e. People v. Ruiz (1999) 69 Cal.App.4th 1085, the Second District, Division 6, held that an abstract of judgment which showed that the defendant was convicted of an assault with a deadly weapon, and ambiguously, do to an illegible portion of the abstract, with a great bodily injury enhancement within the meaning of section 12022.7, was sufficient to find that the defendant had a prior serious felony, when the ambiguous portion was corroborated with a notation on the section 969b packet. The section 969b packet included a fingerprint card from the assault case that had a hand written note on it that indicated a 245…W/GBI ([§]) 12022.7.The Court of Appeal found that the note supports the finding of great bodily injury and therefore, a serious felony prior. The Court of Appeal specifically indicated that if the abstract of judgment had not had the illegible portion pertaining to the gbi enhancement on it, then the note on the fingerprint card would not have been a document that could have been used to support the imposition of the enhancement. (See People v. Williams (1996) 50 Cal.App.4th 1405, 1411.) Here, the notation was not used to provide independent information about the prior, but only to determine the content of the now-illegible portion of the abstract.
f. People v. Mackey (1999) 74 Cal.App.4th 921, the Fifth Appellate District, held that the prosecution can prove the validity of appellant’s prior conviction based on official documents relating to the prior conviction. In People v. Dunlap (1993) 18 Cal.App.4th 1468, this same court held that it was permissible to use CLETS printouts to prove a prior conviction. Now see People v. Martinez (2000) 22 Cal.4th 106 for the definitive ruling from the Supreme Court.
g. People v. Gonzales (2005) 131 Cal.App.4th 767, the Fourth Appellate District, Division 2, held that, the admission of the transcript of preliminary hearing transcript in prior case, for purpose of determining whether offense to which the defendant pled guilty, and whether it was a serious or violent felony under Three Strikes Law, did not violate defendant’s rights under Confrontation Clause under Crawford v. Washington (2004) 541 U.S. 36, [124 S.Ct. 1354], or Shepard v. United States (2005) 544 U.S. , [125 S.Ct. 1254, 161 L.Ed.205] [the factfinding to determine whether a guilty plea admitted elements of a violent offense, is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and the defendant in which the factual basis for the plea was confirmed or some comparable judicial record of this information], as the Court of Appeal found that neither opinion applied. Additionally the Court of Appeal held that the retrial of the prior was not barred by double jeopardy pursuant to People v. Barragan (2004) 32 Cal.4th 236.
27. GROSSLY NEGLIGENT DISCHARGE OF A FIREARM QUALIFIES AS ASTRIKE
a. People v. Leslie (1996) 47 Cal.App.4th 198, the Second District, Division Two, held that, pursuant to People v. Equarte (1986) 42 Cal.3d 456, that grossly negligent discharge of a firearm is a serious felony under section 1192.7, subdivision (c)(8). However, I would still consider challenging this ruling, contending that the legislature intended that the personal use be against a particular person and not the mere random shooting into the air without an intended victim.
28. WHEN THE PRIOR WAS NOT ADMITTED OR PROVEN TO BE A SERIOUS
FELONY WHEN THE PLEA WAS ENTERED, THE PROSECUTION IS NOT PRECLUDED FROM RAISING THE ISSUE ON APPELLANT’S SUBSEQUENT CONVICTION
a. People v. Milosavljevic
(1997) 56 Cal.App.4th 811People v. Thompson
(1997) 59 Cal.App.4th 1271People v. Nava
(1996) 47 Cal.App.4th 1732 People v. Haywood
(1996) 39 Cal.App.4th 907 People v. Terry
(1996) 47 Cal.App.4th 329 People v. Stevens
(1996) 48 Cal.App.4th 982 People v. Bury
(1996) 50 Cal.App.4th 1873 People v. Nguyen
(1997) 54 Cal.App.4th 705 People v. Tavernetti
(1996) 48 Cal.App.4th 1621 People v. Harris
(1999) 72 Cal.App.4th 711 People v. Baca
(1996) 48 Cal.App.4th 1703Alvarez (1996) 49 Cal.App.4th 679, the Fifth Appellate District held that the jury could not be told the reason why defendant recanted his confession — it was because he realized that it would subject him to the three strikes provisions. Given the fact that raised the issue of penalty, the court would only instruct the jury with CALJIC 17.42.
c. People v. Nichols (1997) 54 Cal.App.4th 21, the First Appellate District, Division 3, ruled that, the trial court is not required to instruct on nullification even if the jury asks for instruction on the issue, even though the jury has the “undisputed power” to ignore the evidence and the law and to acquit if that is what it chooses to do. (See People v. Fernandez (1994) 26 Cal.App.4th 710, 714.). The court rejected the language from Justice Kaus’s concurring opinion in Dillon pertaining to the court’s duty to instruct the jury on nullification if the jury asks about its power to nullify.
33. WHEN IS A PRIOR A PRIOR?
a. People v. Milosavljevic (1997) 56 Cal.App.4th 811, Fourth Appellate District, Division 2, the court imposed an enhancement for an offense that the prior court had stayed in the original sentencing. The Milosavljevic court, relying on People v. Shirley (1993) 18 Cal.App.4th 40, held that even when the court imposes no sentence the validity of the prior conviction stands for purposes of enhancement statutes. For purposes of a prior conviction statute, defendant suffers such a conviction when he pleads guilty. (Id, at pp. 45-47.) Therefore, even if the original sentencing court had struck the enhancement for gbi at the time of the original sentencing, the court in the current case, can look to that case and still impose the enhancement for the serious felony prior based on the conviction in the original matter.
c. People v. Castello (1998) 65 Cal.App.4th 1242, Fourth Appellate District, Division 1, held that a defendant suffers a prior conviction at the time he or she is found guilty by the trier of act, or pleads to a given charge. (See People v. Rosbury (1997) 15 Cal.4th 206, 210; see also People v. Rhoads (1990) 221 Cal.App.3d 56, 60.) The Court of Appeal found that it was irrelevant that the Florida court, where the convictions occurred, had yet to determine when a conviction actually became a prior offense, as we are guided by the interpretation of conviction under California and not Florida law. Remember, a prior conviction qualifies as a prior only when the conviction for that offense was entered before the commission of the new offense. (See People v. Balderas (1985) 41 Cal.3d 144; People v. Malone (1988) 47 Cal.3d 1; People v. Rojas (1988) 206 Cal.App.3d 795.) Here the conviction was entered at the time of the plea.
d. People v. Flood (2003) 108 Cal.App.4th 504, the Third Appellate District held that an offense for which defendant was convicted between the commission and conviction dates of offense for which defendant is presently being sentenced is not a “strike”under the Three-Strikes Law. However, in this case, since the defendant entered into a plea bargain, wherein an attempted premeditated murder and various enhancements were dismissed, and counsel for defendant stipulated that there was a factual basis for the current offense, the Court of Appeal held that even though the prior was not a “prior”, but occurred subsequent to the current offense, and therefore not technically a strike, “where defendants have pleaded guilty in return for a specified sentence, appellate courts are not inclined to find error even though the trial court acts in excess of jurisdiction…, as long as the court does not lack fundamental jurisdiction.” The Court of Appeal held that a defendant receiving a bargain should not be allowed to “trifle with the courts” by attempting to better the bargain through the appellate process. (See People v. Cepeda (1996) 49 Cal.App.4th 1235, 1239; see also People v. Nguyen (1993) 13 Cal.App.4th 114, 122-123; People v. Beebe (1989) 216 Cal.App.3d 932-933, 935.)
e. People v. Medina (2005) 132 Cal.App.4th 149, the Second Appellate District, Division 2, held that a defendant has been “convicted” of a prior offense for purposes of Three Strikes Law after a jury’s guilty verdict is read in open court even if the jury poll or sentencing is pending. This is consistent with People v. Williams (1996) 49 Cal.App.4th 1632 [convicted has no set meaning] and People v. Mendoza (2003) 106 Cal.App.4th 1030, 1033 [for sentence, conviction only means ascertainment of guilt]. (See also People v. Hendrix (198743 Cal.3d 584, 597; People v. Bento (1998) 65 Cal.App.4th 179, 188 [a verdict is generally complete if it has been read and received by the clerk, acknowledged by the jury and recorded].)
34. SECTION 667.61 (the one strike law) AND THE THREE STRIKES LAW, BOTH ARE APPLIED WHEN IMPOSING SENTENCE
a. People v. Ervin (1996) 50 Cal.App.4th 259, Second District, division 1, held that the provisions of the one strike law for certain repeat sex offenders, (e.g. in this case 15 to life) which was established after the advent of the three strikes law, is the principle punishment, which is then subject to the provisions of the three or two strike provisions of section 667, subdivision (e). The court rejected appellant’s contention, based on People v. Jenkins (1995) 10 Cal.4th 234, that only the three strikes provision should apply and not the one strike provision. Not only did the court reject that concept and only apply the one strike provision, it applied the worst of both statutory schemes to maximize appellant’s sentence. However, remember, Romero indicates that the strikes law is a separate sentencing scheme and is not an enhancement. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 527.) As a result, only one of the two sentencing schemes should be applied, but not both. One can also argue that to impose sentence under both sentencing schemes is a violation of section 654. Furthermore, section 667.61 does not create an exception to section 654 by its silence. (See People v. Siko (1988) 45 Cal.3d 820, 824.)
35. INDETERMINATE TERM CALCULATION IN A TWO STRIKE CASE
a. People v. People v. Tran DEPUBLISHED; formerly at (1998) 67 Cal.App.4th1320, the Third District held that it would be “absurd” to sentence the defendant to a term of double life without the possibility of parole, merely because the literal application of a two strike sentence within the meaning of section 667, subdivision (e)(1), would call for such a sentence. It is clear that a statute should not be given a literal meaning when it will lead to absurd results. Here the Court of Appeal specifically stated, “Defendant has but one life to give to the Department of Corrections.” The Court of Appeal struck the double life sentence, and lowered it to a single life sentence.
d. People v. Hardy (1999) 73 Cal.App.4th 1429, the Second District Court of Appeal, Division 2, held that a person sentenced to a term of LWOP, can have that sentenced doubled if he or she falls into the two strike category. The court disagreed with appellant’s contention that doubling LWOP would be absurd, as there is a remote but real possibility that the Governor might commute one or more of the sentences. (People v. Garnica (1994) 29 Cal.App.4th 1558, 1564.)
e. People v. Smithson (2000) 79 Cal.App.4th 480, the Third Appellate District held that, by the terms of section 667, subdivision (e)(1), LWOP sentences are not doubled.
36. THE PROSECUTION CAN APPEAL AN UNAUTHORIZED SENTENCE, BUT
(IN SOME DIVISIONS) NOT A GRANT OF PROBATION
a. People v. People v. Robles
(1997) 52 Cal.App.4th 157 People v. Walker
(2001) 88 Cal.App.4th 1022 People v. Cardenas
(1997) 53 Cal.App.4th 240 People v. Harrison
(1997) 60 Cal.App.4th 107 People v. Lyons
(1999) 72 Cal.App.4th 1224 People v. Akins
(1997) 56 Cal.App.4th 331Saldana (1997) 57 Cal.App.4th 620, Second Appellate District, Division 5, held that, an intervening or contemporaneous change in the law, between the time the Court of Appeal has initially ruled, and the new trial court ruling, does not bind the trial court to the Court of Appeal’s initial decision. Here, the Court of Appeal initially ruled that it would be an abuse of discretion to strike a strike; then Romero and People v. Superior Court (Alvarez) were decided. This Court of Appeal found that those decisions were intervening changes in the law, and as a result, the trial court was not precluded from striking a strike when the Romero writ was filed in the trial court. The court reasoned that the trial court must base its decision to strike a strike on a multitude of individualized sentencing factors, and not merely on appellant’s criminal record. Given the fact that the trial court was not presented with all mitigation the first time, nor was it presented to the Court of Appeal, appellant was not bound by the law of the case. The Court of Appeal found that considering only a defendant’s criminal history is “incompatible with the very nature of sentencing decision; the entire picture must remained exposed.” This is another in a series of cases which established that individualized sentencing criteria must be used.Combine this case and the concepts of People v. Bishop, supra, 56 Cal.App.4th 1245, which indicate that all three strike defendant’s have bad records, but alone should not preclude the court from striking a strike based on the mitigating factors presented.
b. People v. Mitchell (2000) 81 Cal.App.4th 132, the Fourth Appellate District, Division 1, held that when either party fully litigates a matter, and the Supreme Court denies review on the ground ruled upon by the lower court, such decision of the Court of Appeal becomes law of the case. (See In re Saldana (1997) 57 Cal.App.4th 620, 625.) Law of the case extends to appellate court’s statements in its opinion on appeal of a rule of law necessary to its decision, and to appellate court opinions of an appellate court in original proceedings, and both the prosecution and the defense are bound. With regard to legal sufficiency of evidence, the general rule is that where the sufficiency of the evidence to sustain the judgment depends on the probative value or effect of the evidence itself, and there is no substantial difference in the evidence in the retrial, the former decision is law of the case. The primary purpose for application of the doctrine of law of the case is one of judicial economy, and it prevents the parties from seeking appellate reconsideration of an already decided issue in the same case absent some significant change in circumstances (People v. Whitt (1990) 51 Cal.3d 620, 638), intervening or contemporaneous changes in the law, or the establishment of a new precedent by controlling authority have been recognized as significant changes which provide grounds for ignoring law of the case. (In re Saldana, supra, 57 Cal.App.4th 625, 626.)
c. People v. Scott (2000) 85 Cal.App.4th 905, the Second Appellate District, Division 3, held, contra to the holding in People v. Mitchell (2000) 81 Cal.App.4th 132, that neither res judicata nor collateral estoppel preclude a retrial on a prior conviction when the matter is reversed on appeal for insufficiency of the evidence. They base their holding on a narrow reading of People v. Monge (1997) 16 Cal.4th 826 and some other related cases. This court goes out of its way to distinguish Mitchell on both its facts and the law that that court applied. This is a necessary read in contravention to Mitchell.
d. Cherry v. Superior Court (2001) 86 Cal.App.4th 1296, the Second Appellate District, Division 4, held that the defendant can be retried on the prior conviction allegations, which were found to be insufficiently proven in the first appeal, pursuant to People v. Monge (1997) 16 Cal.4th 826.The defendant filed the writ based on People v. Mitchell (2000) 81 Cal.App.4th 132, and Apprendi v. New Jersey ((2000) 530 U.S. 466 [120 S.Ct. 2348]. The Court of Appeal denied the writ, finding that the holding of Monge did not bar the retrial of an enhancement in noncapital sentencing. While the Court of Appeal discusses at great length the Apprendi decision, it fails to take into account the argument made by the defendant, which is that the opinion by Justice Thomas, wherein he has now disavowed his vote in Almendarez-Torres v. United States (1998) 523 U.S. 224, which held that a sentence enhancement statute need not be alleged in an indictment as it is only a sentencing factor, not a criminal offense. Justice Thomas wrote that “It is arguable that Almendarez-Torres was incorrectly decided and that a logical application of our reasoning today should apply if the recidivist issue were contested….” With that 5th vote, the Monge opinion is called into question along with Almendarez-Torres and numerous other cases. The Court of Appeal did not address this issue. As a result, I believe that the Supreme Court will grant review of this issue.
e. In re Taylor (2001) 88 Cal.App.4th 1100, modified at 89 Cal.App.4th 406d, the Fifth Appellate District, held that the right to determine the fact of a prior conviction derives solely from California Statutory law, and that Apprendi v. New Jersey (2000) 530 U.S. 466, does not apply to a sentence under the Three Strikes law. Here, the trial court failed to take a jury waiver before the court determined that he sustained a prior serious felony for purposes of the Three Strikes law. Nonetheless, the Court of Appeal recognized the California Supreme Court’s ruling in People v. Epps (2001) 25 Cal.4th 19, wherein the High Court stated that they are not deciding whether Apprendi would apply to a situation wherein some factual determination needed to be determined, such as the residential nature of a burglary.
f. People v. Sotello (2002) 94 Cal.App.4th 1349, the Fifth Appellate District, held, consistent with People v. Scott (2000) 85 Cal.App.4th 905, and Cherry v. Superior Court (2001) 86 Cal.App.4th 1296, and contra to the holding in People v. Mitchell (2000) 81 Cal.App.4th 132, that neither res judicata nor collateral estoppel preclude a retrial on a prior conviction when the matter is reversed on appeal for insufficiency of the evidence. The court simply finds that all felons who have similar priors, should be treated similarly, and therefore, they should be able to be retried within the meaning of Monge.
g. People v. Gonzales (2005) 131 Cal.App.4th 767, the Fourth Appellate District, Division 2, held that the retrial of the prior was not barred by double jeopardy pursuant to People v. Barragan (2004) 32 Cal.4th 236.
41. MUST A DEFENDANT BE PRESENT AND REPRESENTED BY COUNSEL AT A RE-SENTENCING HEARING
a. People v. Vong (1997) 58 Cal.App.4th 1063, Second Appellate District, Division 7, held that, where the Court of Appeal “remands” a matter back to the trial court for “re-sentencing,” in order for the trial court to exercise its discretion to strike a strike, appellant must be represented by counsel and appellant must be present for the hearing. This ruling is consistent with the holdings in In re Cortez (1971) 6 Cal.3d 78, and People v. Tenorio (1970) 3 Cal.3d 89. The issue has now been decided in People v. Rodriguez, supra, (1998) 17 Cal.4th 253. As a result, this matter will likely be transferred back to the Court of Appeal in light of Rodriguez.
b. In re Barfoot (1998) 61 Cal.App.4th 923, the Second Appellate District, Division 4, held that, a defendant who was sentenced prior to Romero, and who files a writ in the superior court based on the fact that the trial court did not believe that it had discretion to strike a strike, has a right to be present and be represented by counsel. As long as the defendant has made a prima facie case for relief in the writ of habeas corpus, s/he is entitled to a re-sentencing hearing. In this situation a prima facie showing for relief requires, at a minimum, a verified allegation that the trial court indicated its belief that it lacked discretion to strike the prior conviction. The Court of Appeal indicated that the better practice would be to file, as an exhibit to the writ, a copy of transcript to establish the prima facie case.
42. A JUVENILE SUSTAINED PETITION FOR RESIDENTIAL BURGLARY OR ROBBERY MAY QUALIFY AS A STRIKE EVEN THOUGH A RESIDENTIAL BURGLARY IS NOT A WELFARE AND INSTITUTIONS CODE SECTION 707, SUBDIVISION (b) OFFENSE DEPENDING ON WHICH DISTRICT YOU ARE IN, AND EVEN IF THE PROSECUTION DID NOT PROVE THE MINOR WAS PERSONALLY ARMED WITH A FIREARM DURING THE COURSE OF THE ROBBERY
a. People v. Griggs (1997) 59 Cal.App.4th 557, the Fifth Appellate District held that, even though a petition was sustained for an non-section 707, subdivision (b) offense, and therefore, was not within the meaning of section 667, subdivision (d)(3)(B), it still qualified as a strike. The court indicated that we cannot read statutes so literally, and declined to follow the plain meaning of the statute. THIS CASE IS EXPRESSLY OVERRULED IN PEOPLE V. GARCIA (1999) 21 Cal.4th 1, modified at 21 Cal.4th 85.
b. People v. Moreno (1999) 65 Cal.App.4th 1198, the Fourth District, Division Three held that appellant’s prior juvenile sustained petition could be used as a strike even though it was not proven that appellant was personally armed during the robbery. (See Welf. & Instit. Code sec. 707, subd. (b)(3). The Court of Appeal found that a 707, subdivision (b) offense can be found where a principal other than the minor is armed (In re Chistopher R. (1993) 6 Cal.4th 86, 93-95), then the prior constituted a strike.
c. People v. Lewis DEPUBLISHED; formerly at (1999) 72 Cal.App.4th 945, the Second Appellate District, Division 4 held that if a prior juvenile adjudication does not qualify as a strike within the meaning of Welfare and Institutions Code section 707, subdivision (b), even if it does qualify as a strike within the meaning of section 1192.7, subdivision (c), then it cannot qualify as a strike. Here, appellant had a previously sustained petition for robbery, but that robbery was not with a dangerous or deadly weapon. Only a robbery with a dangerous or deadly weapon, not just a robbery, is a crime within the meaning of Welfare and Institutions Code section 707, subdivision (b). This Court of Appeal found that because subdivisions (d)(3)(B) and (d)(3)(D) of section 667 have different functions, and are not coextensive the prior robbery without the use of a dangerous or deadly weapon cannot act as a strike. Requirement (D) identifies the offenses by which an individual becomes eligible for treatment as a strike offender, while requirement (B) identifies the offenses that the count as strikes for that offender. The Court of Appeal stated that the Legislature and the voters intended the list of potential strikes to be broader than the list of threshold offenses for treatment as a strike offender.
d. People v. Diller DEPUBLISHED; formerly at (1999) 72 Cal.App.4th 1165, the Third Appellate District held that if a prior juvenile adjudication does not qualify as a strike within the meaning of Welfare and Institutions Code section 707, subdivision (b), even if it does qualify as a strike within the meaning of section 1192.7, subdivision (c) or 667.5, subdivision (c), then it cannot qualify as a strike. The case discusses the fact the juvenile adjudications are not convictions, (see Welf. & Instit. Code § 203), and for all of the favorable legislative intent reasons, the Court of Appeal holds that a prior sustained petition for burglary cannot be used as a strike.
e. In re Jensen (2001) 92 Cal.App.4th 262, the Fourth Appellate District, Division 1 held that a sustained juvenile court petition for voluntary manslaughter would not qualify as a strike given the fact that voluntary manslaughter was not a Welfare and Institutions Code section 707, subdivision (b) offense at the time of the commission of the current offense in 1995. (See People v. Garcia (1999) 21 Cal.4th 1.) A prior juvenile adjudication cannot be used as a strike unless all four conditions of subdivision (d)(3)(A)-(D) of section 667 are satisfied. Voluntary manslaughter was not added to the list of Welfare and Institutions Code section 707, subdivision (b) offenses until after the passage of Proposition 21, March 8, 2000. Therefore, it did not qualify as a strike in this case.
43. DEFENDANT DOES NOT HAVE A RIGHT TO A UNITARY TRIAL ON THE CURRENT OFFENSES AND THE STRIKE ALLEGATIONS
a. People v. Cline (1998) 60 Cal.App.4th 1327, the Fourth Appellate District, Division Two, held that even though the defendant requested that the prosecution prove its strike allegations in its case-in-chief, especially when counsel informs the court that the defendant will not testify, the prosecution still has a right to bifurcate the proceedings. The Court of Appeal bought the prosecution’s argument that the defendant was merely trying to argue jury nullification. The Court of Appeal upheld the prosecution’s right to base on People v. Calderon (1994) 9 Cal.4th 69, 79. The trial court has the right to control the conduct of the proceedings pursuant to section 1044, and therefore, this court concluded that, to prevent any question of jury nullification, it could bifurcate the strike priors at the request of the prosecution based on the Supreme Court’s holding in Calderon. Here, the defendant had twelve prior convictions, which the court felt would be prejudicial; the issue was to whom. Why would that be prejudicial to the prosecution? It could only be to the defendant, and he chose to put that information before the jury in the prosecution’s case in chief. A + B does not equal C in this case.
44. WHEN THE SUPERIOR COURT DENIES A ROMERO WRIT AFTER GRANTING AN OSC, THE RULING IS APPEALABLE AND NOT MERELY WRITABLE–IN SOME DISTRICTS.
a. Lewis v. Superior Court DEPUBLISHED; formerly at (1998) 60 Cal.App.4th 913, the Second Appellate District, Division 2, held that, if the superior court finds the Romero writ of habeas corpus sufficient to order an order show cause, but ultimately does not grant the writ, petitioner has the right to appeal from that ruling rather than merely filing another writ in the appellate court. On the other hand, if the superior court denies the Romero writ without granting an order to show cause, then petitioner’s only remedy is to file a writ in the Court of Appeal. However, we can still rely on People v. Wax (1972) 24 Cal.App.3d 302, 304, to obtain the same result.
b. People v. Garrett (1998) 67 Cal.App.4th 1419, the Second District, Division 5, held that when a Romero writ is denied in the superior court, the matter is not appealable, but writable. The Court of Appeal found that the holding in People v. Wax (1972) 24 Cal.App.3d 302, did not provide any rationale for its holding, and therefore, it did not have to be followed. This court did proceed to review the matter as a writ of habeas corpus in the interest of judicial economy. (See Olson v. Cory (1983) 35 Cal.3d 390, 401.)
c. People v. Gallardo (2000) 77 Cal.App.4th 971, a denial of a writ of habeas corpus in writable only and is not appealable. (In re Clark (1993) 5 Cal.4th 750, 767, fn. 7.) The court declines to follow People v. Wax (1972) 24 Cal.App.3d 302.
45. A JUVENILE IS NOT ENTITLED TO A JURY TRIAL IN JUVENILE COURT
EVEN THOUGH A SUSTAINED PETITION FOR A SERIOUS OR VIOLENT
FELONY WOULD QUALIFY AS A STRIKE
a. Myresheia W. v. Superior Court (1998) 61 Cal.App.4th 734, the Second Appellate District, Division 5, held that, a juvenile is not entitled to a jury trial in the juvenile court since there are still theoretical different purposes between juvenile and adult proceedings. As we know, in reality, this is a fallacy that exits when the court wants to deny a juvenile any further protections. Amendments to Welfare and Institutions Code section 202 have added as a purpose “protection of the public” and provides for “punishment” that is consistent with the rehabilitative objectives of the juvenile court in order to proceed more punitively. Use this case in an attempt to persuade a trial court that wants to incarcerate your client without an attempt to rehabilitate first.
b. People v. People v. Fowler
(1999) 72 Cal.App.4th 581People v. Cervantes
(1999) 75 Cal.App.4th 28People v. Bowden
(2002) 102 Cal.App.4th 387 People v. Smith
(2003) 110 Cal.App.4th 1072 People v. Superior Court (Andrades)
(2003) 113 Cal.App.4th 817 People v. Encinas
(1998) 62 Cal.App.4th 489 People v. Blackburn
(1999) 72 Cal.App.4th 1520 People v. Cortez
(1999) 73 Cal.App.4th 276 People v. Jones
(1999) 75 Cal.App.4th 616 In re Cruse
(2003) 110 Cal.App.4th 1495 In re Cruse
(2003) 110 Cal.App.4th 1495Gray (1998) 66 Cal.App.4th 973, the First District, Division 5, held that a claim of vagueness is waived, even though raised in appellant’s opening briefing, if appellant fails to provide any substantial argument or citation to authority to support these contentions. (See People v. Hardy (1992) 2 Cal.4th 86, 150.) Counsel cannot merely mention vagueness or any other constitutional principal for the purpose of exhaustion, without citing some specific wording in the statute and case law to support the theory.
48. GRAND THEFT “INVOLVING” A FIREARM IS A SERIOUS FELONY INCLUDES GRAND THEFT OF A FIREARM, THEREBY MAKING IT A STRIKE
a. People v. Rodola (1998) 66 Cal.App.4th 1505, the Second District, Division 4, held that a conviction for grand theft of a firearm came within the provisions of section 1192.7, subdivision (c)(26), that the offense “involved” a firearm. Therefore, the offense constitutes a serious felony and a strike. The court found that based on the legislative history of section 1192.7, that the Legislature intended that theft of a firearm be included within the meaning of the serious felony statute.
49. A PLEA TO A FEDERAL BANK ROBBERY CONVICTION, WHERE THERE ARE TWO DISTINCT WAYS IN WHICH THE STATUTE CAN BE VIOLATED, AND IF PROVEN CONSTITUTE A SERIOUS FELONY, AND A STRIKE, IS INSUFFICIENT AS A MATTER OF LAW UNLESS THE EVIDENCE PRESENTED PROVES ONE OR BOTH OF THE TWO DISTINCT WAYS THE STATUTE CAN BE VIOLATED.
a. People v. Mitchell DEPUBLISHED (1999) 68 Cal.App.4th 1489, the Fourth District, Division 1, held that the federal bank robbery statute can be violated in two distinct ways: (1) felony taking by force or fear, and (2) entering with the intent to commit a felony or larceny therein. Defendant had pled to the bank robbery and the prosecution argued that the plea constituted an admission to each element of the offense. This argument was essentially adopted in People v. Guerrero (1993) 19 Cal.App.4th 401.This court finds that People v. Rodriguez (1998) 17 Cal.4th 253, 261-262 implicitly disapproved Guerrero, in that Rodriguez held that when the defendant plead to an assault, which can be committed in two different ways, and the record of conviction (see People v. Woodell) (1998) 17 Cal.4th 448), did not specifically prove either of the two distinct manners in which the statute could be violated, held that the prior was not sufficiently proven as a matter of law. That rationale was similarly followed by the Court of Appeal in this matter. The court reverses based on ineffective assistance of appellate counsel for failing to raise the issue on the first appeal.
b. People v. People v. Rodriguez
(1999) 69 Cal.App.4th 341People v. Tobias
(1999) 77 Cal.App.4th 38People v. Leng
(1999) 71 Cal.App.4th 1People v. Henley
(1999) 72 Cal.App.4th 555People v. Blackburn
(1999) 72 Cal.App.4th 1520Blackburn (1999)72 Cal.App.4th 1520, the Fourth Appellate District, Division 2, held that, a prior conviction for a violation of section 246, shooting into an occupied motor vehicle, is not in and of itself a strike; however, it can become one if the facts of the record of conviction, here the preliminary hearing testimony, established that the defendant personally used a weapon in the course of that offense. In this case, the facts clearly established the use. Furthermore, the Court of Appeal found it irrelevant that the use enhancement was stricken as part of a plea bargain; they found that if the facts establish that the defendant personally used the weapon, it will count as a strike in any subsequent prosecution, and that the striking of the use enhancement merely bared the imposition of time on the current offense, and not that it could not be used in the future to establish a strike. In order to avoid this result, I would try and work out a negotiated disposition, that is on the record, that establishing that if the use is stricken, it cannot be used for any purpose in any subsequent prosecution; if that deal cannot be forged, then the defendant must be told that any facts showing his personal use, can be used against him in a future prosecution to make this conviction a strike.
55. RAPE IN CONCERT QUALIFIES AS A STRIKE EVEN THOUGH IT WAS NOT LISTED IN SECTION 1192.7 UNTIL AFTER JUNE 30, 1993
a. People v. Davis DEPUBLISHED; formerly at (1999) 76 Cal.App.4th 1347, the Fourth Appellate District, Division 1, held that even though rape in concert was not added to the list of enumerated serious felonies under section 1192.7, subdivision (c) until 1998, well after the date that the Three-Strikes legislation indicates which felonies qualify as prior strikes, it is the criminal “conduct” that is called into question and not the specific penal code section. The Court of Appeal’s rationalization is that since rape was listed as a serious felony at the time of the strikes legislation, then the conduct of rape in concert, a more serious crime, must also be included. Therefore, since appellant was convicted of rape and rape in concert during the same event, they both qualified as strikes, subjecting appellant to a 25 to life sentence.
56. A DEFENDANT’S PRIOR CONVICTION FOR SECTION 288, SUBDIVISION (a), CONSTITUTES A PRIOR STRIKE
a. People v. People v. Young
(2000) 77 Cal.App.4th 827People v. Fountain
(2000) 82 Cal.App.4th 61People v. Taylor
(2004) 118 Cal.App.4th 11People v. Davis
(2000) 79 Cal.App.4th 251Mitchell (2000) 81 Cal.App.4th 132, the Fourth Appellate District, Division 1, held that in a prior appellate opinion involving the same issues, the court determined that as a matter of law the evidence presented was insufficient to show that the prior federal bank robbery conviction qualified as a serious felony in California. Filling in the blanks left open by the United States Supreme Court’s ruling in Monge v. California (1998) 524 U.S. 721, and People v. Monge (1997) 16 Cal.4th 826, where the state has a full and fair opportunity to present its case unhampered by evidentiary error or other impediment, fundamental fairness requires application of equitable principles of res judicata and law of the case to preclude the relitigation of defendant’s prior serious felony conviction allegations for purpose of the 5 year prior as well as the Three Strikes law. The court does an extensive analysis of the principles of collateral estoppel and res judicata and the policy reasoning behind each of them. The Court of Appeal also notes that even though the doctrine of res judicata is a component of double jeopardy, it has been recognized as a separate equitable doctrine that may bar relitigation of prior final determinations or issues. Given the fact that this Court of Appeal in Mitchell II, held as a matter of law that the evidence presented by the prosecution was insufficient, they impliedly determined that the original trial court had erroneously entered true findings for those allegations. Had the trial court entered the appropriate “not true” finding (§ 1158), the matter would have ended at the conclusion of the first trial on the priors since the People do not have the right to appeal those determinations (§ 1138).
61. DOES THE EXCEPTION MENTIONED IN FOOTNOTE 8 OF BENSON APPLY?
a. People v. Mitchell REVIEW GRANTED ON UNRELATED ISSUE (S090791), reported on November 3, 2000, in 00 Daily Journal D.A.R.11755; formerly at (2000) 82 Cal.App.4th 55, the Second Appellate District, Division 7, held consistent with the ultimate holding in People v. Benson (1998) 18 Cal.App.4th 24, that the trial court did not err when it found 2 strike priors, which arose out of the same occasion, could form the basis for the strike priors in order to impose the 25 to life term. Appellant was convicted, in 1983 of arson, within the meaning of section 451, subdivision (a), and of arson of a structure, within the meaning of section 451, subdivision (c), both arising out of the same act. The Supreme Court left open the question whether it would be an abuse of discretion for the trial court not to dismiss such a strike prior, where, the prior felonies are so closely related, that being, when multiple convictions arise out of a single act as distinguished from multiple acts committed in an indivisible course of conduct. (See footnote 8.) The Court of Appeal, in this matter, did not discuss this issue. I believe that this issue is screaming out for its resolution in this case or a case very similar. A petition for rehearing is being done in this matter, and if that is unsuccessful, a petition for review will be filed. I encourage anyone with a similar issue to do the same thing.
b. People v. Ortega (2000) 84 Cal.App.4th 659, the First Appellate District, Division 2, held that the trial court did not abuse its discretion in failing to dismiss a count of assault, which was unquestionably the part of a single transaction wherein the defendant was convicted of attempted voluntary manslaughter; they relied in large part on the dissent in People v. Benson (1998) 18 Cal.App.4th 24. The Court of Appeal agreed with the trial court, that the issue of dismissing the count should be resolved in the future, if the defendant commits another act that would subject him to an indeterminate life sentence under the Three Strikes law. The Court of Appeal flatly refused to resolve the matter left open by the Benson Court in footnote 8.
62. A HIT AND RUN ACCIDENT DOES NOT QUALIFY AS A SERIOUS FELONY OR A STRIKE UNLESS THE “RUNNING” ASPECT OF THE CRIME CAUSES THE GREAT BODILY INJURY
a. People v. Wood (2000) 83 Cal.App.4th 862, the Fourth Appellate District, Division 1, held, consistent with People v. Braz (1998) 65 Cal.App.4th 425, that the gravamen of a hit and run (Pen. Code § 20001, subd. (a)), is not the initial injury to the victim, but leaving the scene without presenting identification or rendering aid. Therefore, unless the defendant’s failure to stop and present identification and render aid causes permanent, serious injury to the victim, it is not a serious felony, and therefore not a strike, within the meaning of either sections 1192.7, subdivision (c)(8) or 667, subdivisions (b)-(i). This finding is further bolstered by the fact that section 1192.8, wherein the Legislature sought to clarify which crimes involved vehicles constitute serious felonies, did not list Vehicle Code section 20001.
63. A DEFENDANT MAY NOT CHALLENGE HIS PLEA WHEN A SUBSEQUENT CASE FOUND THAT A PRIOR WAS NOT A STRIKE, THEREBY LOWERING THE MAXIMUM PENALTY FOR THE CURRENT OFFENSE
a. People v. Johnson DEPUBLISHED (2000) 84 Cal.App.4th 20, the Second Appellate District, Division 6, held that a defendant who pleads guilty and admits an enhancement is not entitled to withdraw his plea and admission because a subsequent judicial decision has reduced the maximum penalty for the charged offense and enhancement. (See Brady v. United States (1970) 397 U.S. 742, 757; People v. Camenisch (1985) 166 Cal.App.3d 594, 607.) Here, appellant accepted a plea bargain for a “2-strike” sentence within the meaning of section 667, subdivision (e)(1).Subsequent to the plea, the Supreme Court ruled in People v. Garcia (1997) 59 Cal.4th 557, that a residential burglary, committed while the defendant was a minor, was not a strike. However, the prosecution agreed to strike both questionable prior juvenile burglary sustained petitions which had qualified him for a “three-strike” sentence of 25 to life. Therefore, even if the defendant had not accepted the deal, and had waited until the High Court decided Garcia, he would not have been better off than he was with the deal that he entered into. Therefore, there was not IAC, and he should not now be in a better position than he was at the time he entered the plea.
64. THE COURT CANNOT CONDITIONALLY DISMISS STRIKES
a. People v. Carrillo (2001) 87 Cal.App.4th 1416, the Sixth Appellate District ruled that the trial court could not “conditionally” dismiss strikes in order to circumvent the Three-Strikes law and place appellant in the California Rehabilitation Center (CRC). The Court of Appeal found that this was in contravention to section 667, subdivision (c)(4). The Court of Appeal essentially finds that there is no mechanism for reviving strikes once they are dismissed. The court must chose either to dismiss the strikes or keep the defendant within the Three Strike statute. (See also People v. Superior Court (Roam) (1999) 69 Cal.App.4th 1220.)
65. WHAT CAN THE DEFENDANT RAISE ON A LIMITED REMAND
a. People v. Murphy (2001) 88 Cal.App.4th 392, the Fifth Appellate District held that the defendant in this matter, could not raise an issue on the limited remand that was not raised in the first appeal. The Court of Appeal, citing People v. Rodriguez (1998) 17 Cal.4th 253, 260, found that since the court determined that it would not strike a strike, it was not “resentencing” the defendant, but merely reimposing the sentence which had been previously imposed. The court did note that, though California law prohibits a direct attack upon a conviction in a second appeal after a limited remand for resentencing or other post trial procedures, we are not aware of any statutory or decisional authority barring a defendant from raising a new substantive issue which, though technically encompassed in the appellate court’s remand order, could have been raised in the previous appeal. (People v. Senior (1995) 33 Cal.App.4th 531, 535.) The scope of the resentencing is limited by the remand order (People v. Deere (1991) 53 Cal.3d 705, 713.) Therefore, since the court chose not to “resentence” appellant, he could not raise the dual use issue in that proceeding as he could have had the court determined that it was going to strike a strike and “resentence” the defendant to a different term.
66. A PRIOR CONVICTION IS A SERIOUS FELONY BASED ON WHETHER IT WAS A SERIOUS FELONY ON OR AFTER THE EFFECTIVE DATE OF PROPOSITION 21
a. People v. James (2001) 91 Cal.App.4th 1147, the Second Appellate District, Division 2, held, based on the application of sections 667.1 and 1170.125, which indicate that all offenses listed in section 1192.7 on the effective date of Proposition 21, March 8, 2000, are strikes, and there is no ex post facto violation as the trial court held. (See People v. Hatcher (1995) 33 Cal.App.4th 1526, 1527-1528.)Therefore, the Court of Appeal reinstated the two prior strikes that the trial court had stricken.
67. ABATEMENT DOES NOT APPLY TO THE LOS ANGELES DISTRICT ATTORNEY’S POLICY ON CHARGING STRIKE CASES
a. People v. Roman (2001) 92 Cal.App.4th 141, the Second Appellate District, Division 5, held that the concept of abatement, as set forth in In re Estrada (1965) 63 Cal.2d 740; People v. Rossi (1976) 18 Cal.3d 295; In re Pedro T. (1994) 8 Cal.4th 1041 and People v. Trippet (1997) 56 Cal.App.4th 1532, only applies to Legislative enactments and not to a change in a District Attorney’s policy pertaining to the filing of strike cases. The Los Angeles District Attorney’s Office changed policy under newly elected District Attorney James Cooley. The directive essentially instructed that non-violent felonies would not trigger a “third” strike. While on appeal, appellant, who was given a life sentence as a “third-striker”, argued that he should be given the benefit of the new policy. The Court of Appeal rejected appellant’s argument that he would not have been charged as a “third-striker” had his case initially been filed when the policy was in effect. The Court of Appeal held that the prosecutor must file all strikes within the meaning of section 1170.12, subdivision (d)(1). The Court of Appeal is just wrong when it says that appellant would have been charged as a “third-striker”, and then the prosecution would have moved the court to strike strikes in order for him to be sentenced as a “two-striker.” While it is true that the policy to a degree flies in the face of the Three Strikes law, the policy indicates that the case will not be prosecuted as a third strike case. While the ruling may be technically correct, it flies in the face of the charging discretion of the prosecution.
68. A JUVENILE ADJUDICATION MAY NOT QUALIFY AS A STRIKE SINCE APPELLANT WAS NOT AFFORDED A JURY TRIAL
a. United States v. Tighe (2001) 266 F.3d 1187, the Ninth Circuit Court of Appeal held that since appellant was not afforded a jury trial in a juvenile adjudication, which was determined to be a prior conviction, similar to a prior strike, it does not fall within the Apprendi’s narrow prior conviction exception. For a prior to be considered a prior conviction, and therefore a fact that does not have to be decided by the jury, the prior must have been found by a jury and beyond a reasonable doubt. Appellant’s sentence would have been a maximum of 10 years had this “juvenile prior” not been considered as a prior. However, since the district court did consider it along with the two other priors, the current felony offense, and three qualifying priors set a minimum sentence of 15 years; therefore, the punishment was increased beyond that statutory maximum without a jury making the proper factual findings, which is a violation of Apprendi.
b. People v. Lee
(2003) 111 Cal.App.4th 1310People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, the Sixth Appellate District held that a prior juvenile adjudication for robbery constitutes a strike offense in cases where the current offense was committed after the passage of Proposition 21 on March 7, 2000, even if the prior adjudication occurred before that date. However, you should look at People v. Garcia (1999) 21 Cal.4th 1, for a argument that counter this Court’s interpretation of the statute. Additionally the Court of Appeal held that a prior juvenile adjudication may constitutionally be used as a strike even though there is no right to a jury trial in juvenile proceedings. (See People v. Lee (2003) 111 Cal.App.4th 1310.)
69. NOT ALL SECTION 245’S ARE SERIOUS FELONIES POST PROPOSITION 21
a. Williams v. Superior Court (2001) 92 Cal.App.4th 612, the Second Appellate District, Division 2, held that not all assault with a deadly weapons convictions, withing the meaning of section 1192.7, subdivision (c), as amended by Proposition 21, March 8, 2000, are serious felonies, and therefore, they are not strikes. The court found that an assault, where the facts establish that it was only with intent to commit great bodily injury, and not with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm, or assault on a peace officer or firefighter, is not a serious felony.
b. People v. Winters (2001) 93 Cal.App.4th 273, the Fourth Appellate District, Division 1, held that not all assault with a deadly weapons convictions, withing the meaning of section 1192.7, subdivision (c), as amended by Proposition 21, March 8, 2000, are not serious felonies, and therefore, they are not strikes. After a long analysis of legislative intent, the Court of Appeal ultimately agreed with the Second Appellate District, Division 2, in Williams v. Superior Court (2001) 92 Cal.App.4th 612, that an assault, where the facts establish that it was only with intent to commit great bodily injury, and not with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm, or assault on a peace officer or firefighter, is not a serious felony.
c. People v. Haykel (2002) 96 Cal.App.4th146, the Fourth Appellate District, Division 3, held similarly to Williams v. Superior Court (2001) 92 Cal.App.4th 612, and People v. Winters (2001) 93 Cal.App.4th 273, that not all assault with a deadly weapons conviction, withing the meaning of section 1192.7, subdivision (c), as amended by Proposition 21, March 8, 2000, are serious felonies, and therefore, they are not strikes, where the facts establish that it was only with intent to commit great bodily injury, and not with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm, or assault on a peace officer or firefighter.
70. PRIOR CONVICTIONS FOR SECOND DEGREE RESIDENTIAL BURGLARY ARE SERIOUS FELONIES POST PROPOSITION 21
a. People v. Garrett (2001) 92 Cal.App.4th 1417, the Sixth Appellate District held that, based on a legislative intent analysis of Proposition 21, the change in the wording in section 1192.7, subdivision (c)(18), from burglary of an inhabited dwelling house (i.e., pre-proposition 21), to first degree burglary (post-proposition 21) does not inure to the benefit of the defendant, and as a result, if the prosecution can establish the prior conviction for burglary was of a residence, any prior conviction for said crime will suffice. The Court of Appeal rejected appellant’s contention that the legislature amended the section to define burglary in terms of “offense” rather than in terms of “conduct.”
71. ATTEMPTED ROBBERIES ARE NOT VIOLENT FELONIES POST-PROPOSITION 21
a. People v. Belmudes PETITION FOR REHEARING GRANTED; FORMERLY AT (2001) Cal.App.4th ___, reported on October 18, 2001, in 01 Daily Journal D.A.R. 11079, NEW OPINION NOT PUBLISHED, the Second Appellate District, Division 5, held that attempted robberies are not violent felonies within the meaning of section 667.5, subdivision (c) even though they are serious felonies within the meaning of section 1192.7, subdivisions (c)(19)(39.) Unless an attempt to commit a specified crime is listed, other enhancing statutes based on the commission of enumerated felonies do not apply if the offense is not completed; therefore it would qualify as a serious but not a violent felony as specifically stated in 1192.7 and not 667.5. (See People v. Finley (1994) 26 Cal.App.4th 454, 458-459.)
72. WHEN A SUBSTANTIVE OFFENSE WHICH WOULD OTHERWISE BE PRIORABLE IS DISMISSED PURSUANT TO SECTION 1385, IT CANNOT BE USED AS A STRIKE IN A SUBSEQUENT PROCEEDING.
a. People v. Barro (2001) 93 Cal.App.4th 62, the Second Appellate District, Division 4, held that a prior mayhem conviction, which was ultimately dismissed pursuant to section 1385, even though appellant was told that it could be used as a prior in the future, cannot be used as a strike in a subsequent prosecution. The Court of Appeal analyzed the differences between sections 1385 and 1203.4, subdivision (a), establishing that the legislature knew how to write in a provision that would permit the use of the dismissed count as a prior even though the court had dismissed it pursuant to section 1203.4, where it had not added the same clause in section 1385. Additionally, the Court of Appeal held that in spite of the fact that appellant was told that the mayhem count could be used as a prior, the prosecution benefitted from its bargain in that the defendant successfully completed the five years of formal probation.
73. THE PROSECUTION CANNOT AMEND THE INFORMATION TO ADD STRIKES AFTER THE JURY HAS COMPLETED THE GUILT PHASE AND HAS BEEN DISCHARGED
a. People v. Gutierrez (2001) 93 Cal.App.4th 15, the Third Appellate District held, based on its analysis of People v. Tindall (2000) 24 Cal.4th 767, that the trial court erred in permitted the prosecution to amend the information to add a strike allegation and a serious felony allegation after the guilt phase jury had been dismissed. Given the fact that the defendant did object to the amendment, there was no waiver or forfeiture, and the mandatory same jury provision applied here as well as in Tindall even though appellant had waived jury on priors that were previously alleged.
74. THE COURT REFUSES TO APPLY THE PALERMO DOCTRINE, AND HOLDS THAT CRIMES WHICH ARE VIOLENT FELONIES AFTER PROPOSITION 21 ARE LIMITED TO 15% EVEN THOUGH SECTION 2933.1 WAS NOT AMENDED
a. People v. Van Buren (2001) 93 Cal.App.4th 825, the Second Appellate District, Division 6, held with virtually no discussion of the doctrine set forth in Palermo v. Stockton Theatres Inc. (1948) 32 Cal.2d 53, that even though section 2933.1 was not amended to include all of the felonies added to section 667.5, subdivision (c), that those additional violent crimes may be used in determining if a defendant’s sentence is limited to the 15% provision of section 2933.1.
EFFECTIVE 01/01/2003, THE LEGISLATURE AMENDED SECTION 2933.1 TO ADD THE SPECIFIC REFERENCE TO SECTION 667.5, SUBDIVISION (C) TO CURE THE PALERMO PROBLEM.
75. THE SAME PRIOR CONVICTION CANNOT BE USED TO QUALIFY UNDER SECTION 667.61 AND UNDER THE THREE STRIKE LAW
a. People v. Cervantes REVIEW GRANTED, (S104974) BEHIND ACOSTA; FORMERLY AT (2002) 95 Cal.App.4th 598, the Second Appellate District, Division 6, held that within the meaning of section 667.61, as contrasted to section 667.71 and the holding of People v. Murphy (2001) 25 Cal.4th 136, it is impermissible to use the same prior conviction to both qualify a defendant for 25 to life pursuant to section 667.61, subdivision (f) and to use the same prior to qualify for a 25 to life Three Strike sentence within the meaning of section 667, subdivision (e)(2)(A)(ii). However, the Court of Appeal also held that since appellants other serious felony prior was not a sex offense which was used to calculate the 667.61 sentence, it could be used to as a strike within the meaning of section 667, subdivision (e)(1) to double appellant’s sentence; therefore the 25 to life sentence under 667.61 could be doubled within the meaning of Murphy, supra.
b. People v. Johnson (2002) 96 Cal.App.4th 188, the Fourth Appellate District, Division 1, held that within the meaning of section 667.61, as contrasted to section 667.71 and the holding of People v. Murphy (2001) 25 Cal.4th 136, it is impermissible to use the same prior conviction to both qualify a defendant for 25 to life pursuant to section 667.61, subdivision (f) and to use the same prior to qualify for a 25 to life Three Strike sentence within the meaning of section 667, subdivision (e)(2)(A)(ii). However, the court found it permissible to use the same factor to impose the enhancement under section 667, subdivision (a), (see People v. Martin (1995) 32 Cal.App.4th 656), and the enhanced penalty provisions under section 647.6, subdivision (c)(2). (See People v. Levesque (1995) 35 Cal.App.4th530.) If there was another qualifying prior, which is not present in this case, then the one strike law and the three strike law could be cumulatively applied within the meaning of Murphy.
c. People v. Snow (2002) 96 Cal.App.4th 239, the Fourth Appellate District, Division 1, held similarly to People v. Johnson (2002) 96 Cal.App.4th 188, the same justices held, within the meaning of section 667.61,where there are other qualifying priors, other than the one used to impose the one strike law, then the one strike law and the three strike law could be cumulatively applied within the meaning of People v. Murphy (2001) 25 Cal.4th 136. The Court of Appeal concluded that the legislature did not intend the imposition of both sections 667.61 and 667.71, even after the amendment to section 667.71 in 1998.Sections 667.61 and 667.71 are alternative sentencing schemes, to which section 654 does not apply. Therefore, it was err to impose and stay punishment under section 667.71. The mater is remanded to the trial court for resentencing for the determination of whether sentence under section 667.61 or section 667.71 should be imposed, and the other dismissed. The Court of Appeal also found that the enhancements under section 667, subdivision (a)(1), serious felony provision, could also be imposed.
d. People v. Snow (2003) 105 Cal.App.4th 271, the Fourth Appellate District, Division 1 held that, pursuant to People v. Murphy (2001) 25 Cal.4th 136, a violation of section 288a (c)(1) is a strike, even though it is not specifically stated in either sections 667.5 or 1192.7, and therefore appellant is a “third-striker” in this case. Second, the Court of Appeal concluded, based on People v. Acosta (2002) 29 Cal.4th 105, that the three-strike law and the one-strike law can be applied cumulatively, and therefore, appellant is subject to the tripling formula of the three-strike law on top of the 25 to life sentence on the one strike law. However, the Court of Appeal drew the line and held that the habitual defender law section 667.71 could not also be applied cumulatively to the sections 667, subdivision (b)-(i) and 667.61 sentence.
76. THE JURY ONLY NEEDS TO DETERMINE IF THE DEFENDANT SUFFERED A PRIOR CONVICTION, AND A SEPARATE FINDING IS NOT REQUIRED FOR EACH ENHANCEMENT
a. People v. Williams (2002) 99 Cal.App.4th 696, the Third Appellate District held that a defendant has a right to have a jury determine if he was previously convicted of a prior serious felony. (§§ 1025, 1158; People v. Wiley (1995) 9 Cal.4th 580, 589.) Here the information alleged two enhancements pursuant to section 667, subdivision (a)(1), but the jury only returned a verdict as to one of the allegations. However, as to that enhancement, the jury did decide that the defendant suffered a strike within the meaning of section 667, subdivision (b)-(i). The Court of Appeal found that the right to a jury trial extends only to the fact of the conviction alleged in the information, not to the truth of the enhancement allegation itself. The Court of Appeal fails to discuss the cases that indicate that all enhancements must be pled and proven beyond a reasonable doubt. (See People v. Woodell (1998) 17 Cal.4th 448, 461; People v. Houck (1998) 66 Cal.App.4th 350, 354.)NOTE: THIS HOLDING SHOULD BE VIEWED WITH CAUTION AND AN APPLICATION OF APPRENDI v. NEW JERSEY (2000) 530 U.S. 466, [147 L.Ed. 2d 435, 120 S.Ct. 2348] SHOULD BE CONSIDERED IN LIGHT OF JUSTICE THOMAS’S STATEMENT IN THAT OPINION. HE HAS NOW DISAVOWED HIS VOTE IN ALMENDAREZ-TORRES v. UNITED STATES (1998) 523 U.S. 224, WHICH HELD THAT A SENTENCE ENHANCEMENT STATUTE NEED NOT BE ALLEGED IN AN INDICTMENT AS IT IS ONLY A SENTENCING FACTOR, NOT A CRIMINAL OFFENSE. APPRENDI NOTES THAT “IT IS ARGUABLE THAT ALMENDAREZ-TORRES WAS INCORRECTLY DECIDED AND THAT A LOGICAL APPLICATION OF OUR REASONING TODAY SHOULD APPLY IF THE RECIDIVIST ISSUE WERE CONTESTED….”
77. ASSAULT WITH INTENT TO COMMIT LEWD ACTS ON A CHILD QUALIFIES AS A SERIOUS FELONY EVEN THOUGH NOT LISTED UNDER SECTION 1192.7
a. People v. Deporceri (2003) 106 Cal.App.4th 60, the Sixth Appellate District held that, assault with intent to commit a violation of section 288 necessarily involves an attempt to commit a lewd or lascivious act on a child under the age of 14, making it a serious felony for purposes of sentencing under the Three-Strikes Law, regardless of whether current offense occurred before or after the list of serious felonies was revised by Proposition 21.
78. APPELLANT IS SENTENCED ON ALL COUNTS UNDER THE THREE STRIKES LAW EVEN THOUGH THE JURY ONLY FOUND, UNDER ONE COUNT THAT APPELLANT HAD BEEN CONVICTED OF A SERIOUS OR VIOLENT FELONY
a. People v. Morales (2003) 106 Cal.App.4th 445, the Second Appellate District, Division 5, held that a jury’s finding that defendant had previously been convicted of a serious or violent felony required doubling of his sentence on all counts under Three Strikes Law, even though jury finding was made only as to one count.
79. SECTION 1192.7, SUBDIVISION (B)(28), A PROVISION PERTAINING TO CRIMINAL STREET GANG “ENHANCEMENTS” DOES NOT TRANSFORM THE UNDERLYING OFFENSE OF SECTIONS 12021, OR 12025 INTO SERIOUS FELONIES FOR PURPOSES OF A THREE-STRIKE SENTENCE OR SERIOUS FELONY ENHANCEMENT
a. People v. Martinez REVIEW GRANTED (S126653) in light of Briceno; Martinez formerly at: (2004) 120 Cal.App.4th 64, the Fourth Appellate District, Division 3, held that the defendant’s prior conviction for section 12021 in and of itself is not a prior within the meaning of section 1192.7, subdivision (c), but when tied to a section 186.22, subdivision (b) finding, it becomes a serious felony pursuant to section 1192.7, subdivision (c)(28), and therefore qualifies as a strike.
80. UNDER PROPOSITION 21, THE DEFENDANT MAY HAVE A STRIKE WHEN THE DOCUMENTS DO NOT ESTABLISH THAT HE PERSONALLY USED A DANGEROUS OR DEADLY WEAPON IN COMMITTING AN ASSAULT WITH A DEADLY WEAPON
a. People v. Luna (2003) 113 Cal.App.4th 395, the Second Appellate District, Division 5, held that section 1192.7, subdivision (c)(31), adopted as part of Proposition 21, makes assault with a deadly weapon a serious felony without regard to whether defendant personally used the weapon. The Court of Appeal held that Proposition 21, decided after People v. Rodriguez (1998) 17 Cal.4th 253, modified the statute to that which was decided in Rodriguez, to do away with the requirement that the defendant had to personally use the dangerous or deadly weapon to suffer a serious felony for strike purposes. However, section 1192.7, subdivisions (c)(8), and (c)(23), still require the personal use of a gun, or dangerous or deadly weapon. Additionally, as we have seen in Williams v. Superior Court (2001) 92 Cal.App.4th 612, not all assault with a deadly weapons convictions, withing the meaning of section 1192.7, subdivision (c), as amended by Proposition 21, March 8, 2000, are serious felonies, and therefore, they are not strikes. (See also People v. Winters (2001) 93 Cal.App.4th 273; People v. Haykel (2002) 96 Cal.App.4th146.) Therefore, I would question the validity of this opinion.
b. People v. Baneulos (2005) 130 Cal.App.4th 601, modified at 130 Cal.App.4th 1609a, the Second Appellate District, Division 6 held that an assault by means likely to cause great bodily injury is not a serious felony within meaning of Three-Strikes Law or five-year enhancement statute unless the offense involves the use of a deadly weapon or actually results in the personal infliction of great bodily injury. The abstract of judgment reflecting a conviction for assault “GBI W/DEADLY WEAPON,” without saying whether defendant personally used a deadly weapon or personally inflicted great bodily injury, failed to establish that conviction was for a serious felony. The Court of Appeal acknowledged that Division 5 of the Second Appellant District came to a different result in People v. Luna (2003) 113 Cal.App.4th 395, however this court held that it cannot be confident that the abbreviated description of a statute prohibiting two types of criminal conduct was anything more than that particular court clerk’s shorthand method of referring to the statute under which appellant was convicted. The Court of Appeal also concurred with People v. Haykel (2002) 96 Cal.App.4th 146, 148-149; People v. Winters (93 Cal.App.4th 273, 280; and Williams v. Superior Court (2001) 92 Cal.App.4th 612, 622-624 when they indicated that even under the amended law post Proposition 21, a conviction of assault by means likely to cause great bodily injury is not a serious felony unless it also involves the use of a deadly weapon or actually results in the personal infliction of great bodily injury. Citing People v. Cortez (1999) 73 Cal.App.4th 276, 283, the court found that a plea to a criminal statue punishing alternative types of conduct is insufficient to prove that the defendant committed each type of conduct; and since that cannot be established in this case, it cannot be found to be a serious felony.
81. THE THREE STRIKES LAW TRUMPS THE CONTRACT CLAUSES OF THE STATE AND FEDERAL CONSTITUTIONS
a. People v. Gipson (2004) 117 Cal.App.4th 1065, the Sixth Appellate District held that the Three Strike law serves public policy purposes, and as a result, trumps the defendant’s contention that a plea bargain in prior case, which resulted in a strike, once that law was passed, did not violate the contracts clauses of the state and federal constitutions. Appellant’s prior plea, which ultimately resulted in a strike, and the doubling of appellant’s sentence, as his plea bargain is deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public safety. (In re Marriage of Walton (1972) 28 Cal.App.3d 108.) The Court of Appeal also indicated that the plea bargain vested no rights other than those which related to the immediate disposition of the case. (Way v. Superior Court (1977) 74 Cal.App.3d 165, 180.)
82. A CRIMINAL OR TERRORIST THREAT WITHIN THE MEANING OF SECTION 422 IS A STRIKE EVEN IF COMMITTED PRIOR TO THE ENACTMENT OF PROPOSITION 21
a. People v. Moore (2004) 118 Cal.App.4th 74, the Sixth Appellate District held that a prior conviction for a violation of section 422, qualifies as a “strike” under the 2000 amendments to the Three Strikes Law, even where the current offense was committed after the amendments took effect, regardless of when the defendant was convicted of violating section 422. The amendment adding terrorist threats or criminal threats, to the list of serious felonies makes all violations of that section, not only those deemed to be terrorist threats, serious felonies.
83. ALL FELONY VIOLATIONS OF SECTION 136.1 ARE SERIOUS FELONIES
a. People v. Neely (2004) 124 Cal.App.4th 1258, the Second Appellate District, Division 5 held that when section 1192.7, subdivision (c)(37), “intimidation of victims or witnesses, in violation of Penal Code section 136.1” was added with the passage of Proposition 21, it added to the list of serious felonies all violations of that section, not only those that include “intimidation” or the use of, or threat, to use force as an element.
84. DEFENDANT’S SILENCE CAN ESTABLISH THE PRIOR AS A STRIKE
a. People v. Thoma (2005) 128 Cal.App.4th 676, the Second Appellate District, Division 6 held that, in an opinion following a rehearing, the defendant’s prior conviction of felony drunk driving involved “great bodily injury” within the meaning of section 1192.7, subdivision (c)(8), and therefore qualified as a “strike.” The court at the time of the sentencing on the 1995 prior offense, where the defendant had pleaded guilty, and where the court had indicated that the defendant had broken nearly every bone in victim’s body, was an adoptive admission pursuant to Evidence Code section 1221, (see People v. Riel (2000) 22 Cal.4th 1153, 1189), even though he was represented by counsel at the time, where the defendant did not voice a disagreement with the court’s interpretation of the injuries to the victim. The Fifth Amendment precludes the admission of a defendant’s silence as an adoptive admission if there is evidence that, by remaining mute, the defendant was exercising his constitution right to remain silent. (People v. Preston (1973) 9 Cal.3d 308, 313-314.)
85. A CRIMINAL OR TERRORIST THREAT WITHIN THE MEANING OF SECTION 422 IS A SERIOUS FELONY WITHIN THE MEANING OF SECTION 667, SUBDIVISION (a)(1) EVEN IF COMMITTED PRIOR TO THE ENACTMENT OF PROPOSITION 21
a. People v. Ringo (2005) 134 Cal.App.4th 870, the Second Appellate District, Division 5, held that a pre-Proposition 21 conviction for making a criminal threat is a serious felony within the meaning of section 667, subdivision (a)(1). Appellant argued that the change in the lock-in date only affected the three-strikes law, and not section 667, subdivision (a)(1). However, the court rejected that argument, indicating that the lock-in date of June 30, 1993, within section 667, subdivision (h), applies only to the three-strikes law and not section 667, subdivision (a)(1), but that the subdivision (h) provision never applied to subdivision (a)(1), and the only important date is the date of the charged offense. If the alleged prior serious felony was listed in section 1192.7, subdivision (c), on the date of the charged offense, then it can be a 5-year prior.
86. THE STATUTE OF LIMITATIONS FOR AN OFFENSE SUBJECT TO THE THREE STRIKES LAW IS BASED ON THE OFFENSE ITSELF AND NOT THE SENTENCE ENHANCEMENT OF THE THREE STRIKES SENTENCE
a. People v. Turner (2005) 134 Cal.App.4th 1591, the First Appellate District, Division 1 held that in determining the maximum sentence for a crime, in order to determine which statute of limitations is applicable, the court must look to maximum penalty that may be imposed for crime itself, without regard to enhancements based on prior convictions (here the three-strikes law). Here the defendant was charged with robbery, a crime punishable by six years imprisonment, but was subject to potential life sentence under Three Strikes Law. The prosecution was subject to the general three-year statute of limitations, even though an “offense punishable by imprisonment in the state prison for life” may be prosecuted at any time.
87. A STRIKE ALLEGATION CAN BE ADDED TO THE INFORMATION BY ORAL AMENDMENT
a. People v. Sandoval (2006) Cal.App.4th , reported on June 8, 2006, in 06 Los Angeles Daily Journal 7044, the Fourth Appellate District held that a “strike” allegation may be added to an information by an oral amendment, made in open court, in presence of defendant and counsel, absent prejudice.
88. A UTAH PRIOR FOR AGGRAVATED ROBBERY WAS INSUFFICIENTLY PROVEN TO HAVE THE SAME ELEMENTS AS A CALIFORNIA ROBBERY, AND COULD NOT BE IMPOSED AS A SERIOUS FELONY OR A STRIKE
a. People v. Jenkins (2006) Cal.App.4th , reported on June 22, 2006, in 06 Los Angeles Daily Journal 7809, the Second Appellate District, Division 8, held that aggravated robbery, as defined under Utah law as of 1997, did not necessarily constitute a serious or violent felony under either section 667, subdivision (a)(1) or section 667, subdivision (b)-(i), since the offense could be committed by employing force or fear against one person while taking property or while fleeing after taking property from another. Where evidence regarding defendants Utah convictions showed only the existence, date, and statutory authority for the convictions, such evidence was insufficient to establish that the offenses were serious or violent felonies within the meaning of the aforementioned California statutes, but the prosecution was not precluded from retrying the enhancement allegations on the basis of additional evidence. (See People v. Barragan (2004) 32 Cal.4th 236; People v. Monge (1997) 16 Cal.4th 826.) The Court of Appeal rejected appellant’s contention that this matter came within the provisions of Apprendi v. New Jersey (2000) 530 U.S. 466.)
89. A SERIOUS FELONY IS ADDED TO EACH COUNT IN A TWO STRIKE CASE, WHERE AT LEAST ONE OF THE COUNTS IS AN INDETERMINATE TERM DO TO APPELLANT’S RECIDIVISM
a. People v. Misa (2006) Cal.App.4th , reported on June 22, 2006, in 06 Los Angeles Daily Journal 7839, the Fourth Appellate District, Division 1held that, withing the interpretation of People v. Williams (2004) 34 Cal.4th 397, wherein the Supreme Court held that a defendant sentenced to an indeterminate Third Strike case of at least 25 to life, the court is to impose, on each of the substantive count(s) pursuant to section 667, subdivision (e)(2)(i-iii) and who is also subject to determinate serious felony prior(s) pursuant to section 667, subdivision (a), the court shall add the serious felony priors to each count. The rule set forth in section 1170.1, and in People v. Tassell (1984) 36 Cal.3d 77, only applies to determinate term sentencing, (see People v. Nguyen (1999) 21 Cal.4th 197, 205), and not indeterminate terms.) Here, appellant was subject to an indeterminate term for torture (§ 206) and for the determinate terms for assault with a deadly weapon (§ 245, subd. (a)(1)). I question the logic of the court for imposing the additional time for the serious felony within the meaning of section 667, subdivision (a)(1) for the determinate term, in addition to the indeterminate term. This court holds that it is a logical extension of Williams, but hopefully that will be answered by the Supreme Court with the opposite conclusion.
CASES DECIDED
BY THE UNITED STATES SUPREME COURT
1. CRUEL AND UNUSUAL PUNISHMENT
a. Lockyer v. Andrade (2003) 538 U.S. 63, [155 L.Ed.2d 144, 123 S.Ct. 1166], the United States Supreme Court held that the California ruling that a potential life sentence for a repeat offender, whose past convictions were for serious crimes and whose new triggering offense was petty theft, did not constitute cruel or unusual punishment, and was not contrary to controlling U.S. Supreme Court precedent. The dissent indicated that the statutory safeguard of striking a strike in the appropriate case, failed here, and as a result the sentence is grossly disproportionate to the current offense – “if Andrade’s sentence is not grossly disproportionate, the principle has no meaning. The California court’s holding was an unreasonable application of clearly established precedent.”
b. Ewing v. California (2003) 538 U.S. 11, [155 L.Ed.2d 108, 123 S.Ct. 1179], the United States Supreme Court held that the imposition of potential life sentence for a defendant who has a lengthy felony and misdemeanor record, and who has qualifying strikes, even though his current offense was for theft of golf clubs valued near $1,200, did not constitute cruel or unusual punishment. There is an extensive discussion of appellant’s priors, and his lengthy record. However, there are, in this plurality opinion, 7 votes for proportionality review; a sentence that is grossly disproportionate is cruel and unusual punishment. As a result, if you can argue that your client’s record is not as bad as Mr. Ewing’s, and that the current crime is “passive”, then you may have grounds to argue that your client’s sentence is cruel and unusual punishment.
2. WHAT CAN THE COURT CONSIDER TO DETERMINE IF A PRIOR IS A SERIOUS OR VIOLENT FELONY
a. Shepard v. United States (2005) 544 U.S., [124 S.Ct. 2531, 159 L.Ed.2d 403], the United States Supreme Court held that where the prosecution alleged a prior burglary conviction, based on a guilty plea to an offense which would qualify as a violent felony conviction, here a generic burglary, a reviewing court is limited to consideration of whether the guilty plea necessarily admitted elements of the generic offense, and the inquiry is limited to the terms of the charging document, to the terms of a plea agreement or transcript of the colloquy between the court and the defendant in which the defendant confirmed the factual basis for the plea, or to some comparable judicial record of this information. “The Sixth and 14th Amendments guarantee a jury standing between a defendant and the power of the state, and they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence,” he wrote. Unproven evidence such as police reports are “too far removed from the conclusive significance of a prior judicial record” to allow such to be considered. In a concurring opinion, Justice Clarence Thomas said the Court should have eliminated the “prior conviction” exception outright because it violates an individual’s right to be tried and sentenced on factors that are determined “beyond a reasonable doubt” by a jury.
CASES DECIDED
BY THE NINTH CIRCUIT COURT OF APPEAL
3. HABEAS CORPUS RELIEF NOT WARRANTED AS THERE IS NO DUE PROCESS VIOLATION FOR USE OF OUT-OF-STATE OFFENSE AS PREDICATE FOR APPLICATION OF THREE-STRIKE SENTENCE
a. Holgerson v. Knowles (2002) 309 F.3d 1200, the Ninth Circuit Court of Appeal held that the California Supreme Court’s ruling in People v. Hazelton (1996) 14 Cal.4th 101, retroactively applying previous ruling allowing an out-of-state conviction to be treated as one of two predicate convictions under the three-strikes law was not “contrary to” or “an unreasonable application” of the Due Process Clause and thus did not warrant habeas corpus relief. (See United States v. Newman (9th Cir. 2000) 203 F.3d 700, 703 [Bouie v. City of Columbia (1964) 378 U.S. 347, applied only to after the fact increases in the scope of criminal liability and not to retroactive sentence enhancements.) Section 667 does not prohibit conduct that was legal prior to its passage; rather it fixes sentencing ranges for already illegal conduct when the defendant convicted of that conduct has two or more prior strikes.
2. APPELLANT HAS THE RIGHT TO TESTIFY AT A SENTENCING HEARING TO DETERMINE IF THE PRIOR CONVICTION IS A SERIOUS OR VIOLENT FELONY
a. Gill v. Ayers (9th Cir. 2003) 322 F.3d 678, the Ninth Circuit Court of Appeal held that court’s refusal at Three Strikes sentencing hearing to allow the defendant to testify in order to explain or refute the statements attributed to him, violated his due process rights and required reversal of denial of petition for habeas corpus relief. Gill sought to challenge the fact that his prior assault with a deadly weapon conviction, which was used as a strike, was not committed with a deadly weapon. The Court of Appeal held that even though the prosecution is limited to the record of conviction, the defendant is not so limited in providing evidence as to the prior conviction.
b. Gill v. Ayers (9th Cir. 2003) 342 F.3d 911, the Ninth Circuit Court of Appeal held that petitioner was wrongly denied the right to testify at his sentencing hearing in this Three Strikes case to explain statements attributed to him in the probation report wherein he allegedly admitted that prior assault conviction involved personal use of dangerous or deadly weapon. State trial court action violated Fourteenth Amendment right to due process, was an unreasonable application of clearly established federal law as determined by the U.S. Supreme Court since 1925 and including Rock v. Arkansas (1987) 483 U.S. 44, 49, wherein the High Court indicated that the defendant has a right to present evidence, including the right to testify; and the error was not harmless.
3. APPELLANT’S 25 TO LIFE SENTENCE FOR STEALING A VCR, WITH TWO PRIOR SECOND DEGREE ROBBERIES, WITHOUT A WEAPON AND WITH MINIMAL FORCE, AND A 6 MONTH JAIL SENTENCE, AND NO OTHER FELONY CONVICTIONS, VIOLATED THE PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT
a. Ramirez v. Castro (2004) (9th Cir. 2004) 365 F.3d 755, the Ninth Circuit Court of Appeal held that a Three-strikes sentence of 25 years to life for theft of a VCR valued at less than $200 violated the Eights Amendment prohibition against cruel and unusual punishment as applied to appellant’s current and prior offenses. Appellant had previously been convicted of two second-degree robberies, and neither involved weapons; minimal force to escape from each of the petty thefts was used by appellant. Appellant had pled guilty to the priors, which the trial court conceded were actually petty thefts for which defendant served 6 months in county jail and successfully completed the 3 year probationary term without incident. The current offense is a wobbler do to the prior theft offenses; and he had never been convicted of any other felony. The Ninth Circuit Court of Appeal found the California’s appellate court’s upholding of the 25 to life sentence, in which appellant must serve a minimum of 25 years, (see In re Cervera (2001) 24 Cal.4th 1073), was an unreasonable application of controlling federal law, and therefore relief was possible under AEDPA in this “rare case” as a violation of the Eight Amendment. (See Lockyer v. Andrade (2003) 538 U.S. 63, 73-77.)
b. Rios v. Garcia (Ninth Cir. 2004) 390 F.3d 1082, the Ninth Circuit Court of Appeal held that the habeas petitioner’s sentence of 25 years to life in prison for petty theft of two watches worth less than $80, based on his Three Strikes sentence, was not grossly disproportionate to his crime in light of his criminal history. (See Ewing v. California (2003) 538 U.S. 11.) This Court of Appeal distinguished Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755, which held a 25 to life sentence for a theft of a VCR was grossly disproportionate to the crime, as the defendant surrendered without the use of violence, and the priors were two non-violent robberies. Here, petitioner struggled with the arresting security guard, and tried to avoid apprehension.
c. Reyes v. Brown (9th Cir. 2005) 399 F.3d 964, the Ninth Circuit held that the lower court erred in denying a habeas petition based on a violation of the prohibition against cruel and unusual punishment, in this Three Strikes case, where the record did not reflect whether petitioner’s most recent strike offense was a crime against persons or involved violence, and a remand for further development of record was required. It is clear that the Eight Amendment will only apply to Three Strike cases in “exceedingly rare” cases. (See Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755, 763 [appellant’s conduct did not give rise to grave harm to society].)
4. A NONJURY JUVENILE PRIOR CAN BE USED TO ENHANCE SENTENCE
a. Boyd v. Newland (9th Cir. 2004) 393 F.3d. 1008, the Ninth Circuit Court of Appeal held that the Court of Appeal’s ruling that the use of a prior juvenile adjudication to enhance sentence does not violate the defendant’s right to a trial by jury as it was not contrary to clearly established U.S. Supreme Court precedent in Apprendi. The Court of Appeal also noted that United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1194, was not incorrectly decided; but apparently it was just not followed here, as it was not in People v. Bowden (2002) 102 Cal.App.4th 387.
5. THE REMEDY FOR INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING TO ADVISE THE DEFENDANT ABOUT A POTENTIAL THREE STRIKES CONSEQUENCE IS TO PUT THE PARTIES BACK TO THEIR POSITION PRIOR TO THE ERROR
a. Riggs v. Fairman (9th Cir. 2005) REHEARING GRANTED IN BANK (see 430 F.3d 1222); formerly at: 399 F.3d 1179, the Ninth Circuit Court of Appeal held that where federal habeas petitioner was denied effective assistance of counsel during the plea bargaining stage of his state criminal prosecution by his attorney’s failure to inform him that the Three Strikes Law might apply to his case, the court acted within its discretion in vacating the conviction and sentence, thereby ordering the parties to return to the pre-error negotiating stage. (See United States v. Gordon (2nd Cir. 1998) 156 F.3d 376, 381-382.) However, the Court of Appeal refused to order the government to put back on the table its original plea offer.
6. WHERE THE PLEA AGREEMENT, PRIOR TO THE ENACTMENT OF THE THREE-STRIKES STATUTES, STATED THAT THE PRIORS WOULD ONLY BE COUNTED AS ONE CONVICTION, MUST BE UPHELD
a. Davis v. Woodford (9th Cir. 2006) F.3d , reported on April 28, 2006, in 06 Los Angeles Daily Journal 5033, the Ninth Circuit Court of Appeal held that the prosecutor’s agreement, in 1986, to treat the defendant’s guilty plea to eight counts of robbery as “one prior. . .for all purposes” precluded trial court’s ruling in a subsequent case that the convictions constituted eight “strikes” under the Three Strikes Law, enacted in 1994; the denial of state habeas corpus petition was based on an unreasonable determination of the facts in light of the evidence presented in state court and a violation of Santobello v. New York (1971) 404 U.S. 257, 262 [30 L.Ed.2d 427, 92 S.Ct. 495] which holds that a prosecutor’s promise is binding on the courts if it formed part of the inducement for the defendant to plead guilty.
7. NO ERROR OR INEFFECTIVE ASSISTANCE IN FAILING TO RECOMMEND THE DEFENDANT PLEAD TO A NON-THREE STRIKE SENTENCE WHEN THE BELIEF THAT THE DEFENDANT WAS NOT A THREE STRIKER WAS ERRONEOUS
a. Perez v. Rosario (9th Cir. 2006) F.3d , reported on May 23, 2006, in 06 Los Angeles Daily Journal 6168, the Ninth Circuit Court of Appellate held that where the prosecutor offered a plea bargain based on the mistaken belief that one of the defendant’s prior convictions was not a strike, and the court held the same mistaken belief, and defendant followed counsel’s advice that the offered prison term was excessive for a non-three-strikes case, the defendant’s assertion that he would have accepted offer had he been told that the prior offense was a strike was insufficient to establish that the defendant was prejudiced by counsel’s advice not to accept the offer, which would likely have been withdrawn once the prosecutor realized that the three strikes law applied.